Louisville Daily Journal (April 1868): The President is not an "Officer of the United States"

A new source in the debate over Section 3 of the Fourteenth Amendment.

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

In our view, the phrase "Officers of the United States" does not refer to the President. This was true in 1788, was true in 1868, and is true today. A common refrain from Professor Mark Graber and others is that we have pointed to no one who publicly stated that view "within a decade" of the Fourteenth Amendment's ratification. Graber has also narrowed that window to the 1860s. He wrote, "No evidence exists that any member of Congress, member of a state legislature, political activist, journalist, or hopeless crank during the 1860s thought a president was not an officer of the United States." Is the relevant time frame from 1858 to 1878 (i.e., a decade before and after ratification), from 1860-1870 (i.e., the decade of ratification), or from 1866 to 1868 (i.e., the ratification period)? Relatedly, Michael Stern wrote "there is no record of anyone else, eminent thinker or otherwise, saying" that the President does not hold an Office under the United States "in the Constitution's first two centuries." We have long faced shifting evidentiary targets, since January 6, 2021 and since the beginning of Section 3 litigation. Those who have made and relied upon these and similar categorical empirical claims took a risk: that no such statement actually existed. They made a falsifiable claim, and here in this post, we will show that the claim is false. We discussed these articles and issues in our recently-filed amicus brief before the U.S. Supreme Court.

In April 1868, the Louisville Daily Journal published a series of articles contending the President is not an "Officer of the United States" as that phrase is used in the Constitution. Albeit, these newspaper articles did not address the meaning of that phrase with respect to Section 3. Still, we submit that the text of the Fourteenth Amendment would have been well-familiar to the public during this pivotal juncture. At the time, state ratification of the Fourteenth Amendment remained ongoing. Still, even timing aside, these newspaper articles are instructive for the Section 3 analysis. Why? The newspaper articles used the same mode of analysis that we have repeatedly used to understand the meaning of the phrase "Officers of the United States": considering how the phrase "Officer of the United States" is used in the Commissions Clause and the Impeachment Clause; established practices of the government since 1788; parsing the records from the Blount impeachment trial; relying on analysis from Justice Story's Commentaries on the Constitution; and more. 

To be sure, in 1868, as today, there were debates about whether the President is an "Officer of the United States." Indeed, the Louisville, Kentucky newspaper responds to a Cincinnati, Ohio newspaper article that took the opposite position. In short, the same debates being held today about textualism and purposivism, and how those methodologies should be applied to the Constitution's "officer of the United States"-language, were also held 150 years ago. 

Here, we give all credit to John Connolly, who located these Louisville Daily Journal sources, along with several related contemporaneous newspaper articles. Again, these statements were made in a newspaper from Louisville (where Blackman fondly lived for a year during his clerkship). We have no reason to believe these statements were not understood. We have no reason to believe that these views were rejected by all, or even most citizens, as less than reasonable. And we have no reason to suspect that the reasoning here was so obscure that similar statements do not appear elsewhere. How few or how many such similar statements might exist in other sources is yet to be published. 

Louisville Daily Journal, April 11, 1868, Page 1

The first of the three articles in the Louisville Daily Journal was published on Saturday, April 11, 1868. The article asked and answered the threshold question: 

What is an officer of the United States? Is he not one who derives his appointment from the government of the United States and not from the government or people of a state?

Here the article invoked the same reasoning used by Chief Justice Marshall in United States v. Maurice. Marshall, while riding circuit, limited the construction of the phrase "officer of the United States" to "an individual [who] is appointed by government." 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747). 

The April 11, 1868 article did not discuss whether the President is an "Officer of the United States." But the author's reasoning, at this early juncture, would support the conclusion that the President is not an "Officer of the United States." Presidents are not appointed; they are elected by electors who "vote by ballot," and, in a contingency election, they are elected by state delegations in the House, which "choose by ballot." The Constitution studiously avoids the language of "appointment" in regard to the election of the President in Article II and under the Constitution's revised Twelfth-Amendment presidential elections procedures. 

The Louisville Daily Journal also makes an argument based on historical practice. Here, the author pointed to the Commissions Clause:

The Third section of the second article declares that the President 'shall commission all the officers of the United States.' Of course nobody claims that the President has a right to commission a member of the Senate or of the House of Representatives. . . . for the president is bound to 'commission all the officers of the United States.' This we think is decisive. It appears to us to end the question.

About nine days earlier, another publication made a similar argument. On April 2, 1868, the Washington National Intelligencer explained: 

A final and decisive test of an "officer of the United States," is afforded by the Constitution itself. (emphasis added). It is this, that "the President shall commission all the officers of the United States." But the President never commissions a Senator nor Representative, nor the President pro tempore of the Senate.

There is no tradition of the President ever commissioning a member of Congress. And the Constitution provides that the President "shall commission all the officers of the United States." In light of this history, it stands to reason that members of Congress are not "Officers of the United States." Likewise, there is no tradition of the President commissioning himself or his successor. If we extend the author's reasoning—i.e., relying on the President's duty to commission all the officers of the United States—it would also follow that the President is not an "Officer of the United States."

But what about the Speaker of the House and Senate President Pro Tempore. The Constitution specifically refers to them as officers—that is, an officer of each house of Congress. Still, the author denies that they would be "officers of the United States." Again, we can extend the author's logic. In the original Constitution, the president is nowhere described as an "officer;" but, the presidency is characterized as an "office." Thus even if the presidency is an "officer" because he holds an "office," it does not follow that he is an "officer of the United States." 

Louisville Daily Journal, April 15, 1868, at 1:

Four days later, on April 15, 1868, the Louisville Daily Journal published an article titled, A Raking Shot at Some Accepted Doctrine. This article appears to be a response to another article from the Commercial, a Cincinnati newspaper. The Louisville Daily Journal begins by stating that others contend as "accepted doctrine[]" that "the President of the United States is an officer of the United States." In 1868, and today, there was disagreement and debate about whether the President is an "Officer of the United States."

The Daily Journal explains, those who hold the "accepted" view would "put the burden of proof on him who disputes them." In 1868, and today, those who insist that the President is an "Officer of the United States" would place the burden on those who think otherwise. Then, and now, we think the burden should be on those who argue that the President is an "Officer of the United States." 

The author of the Louisville Daily Journal article "propose[s] to assume" this "burden," and "propose[s] to take a raking shot at the lot." A raking shot refers to a shot fired from a sharp, or acute angle. The Louisville Daily Journal's analysis has four primary components.

First, the Louisville Daily Journal repeats its discussion from the April 11 article. That piece explained that an "Officer of the United States" is appointed by the federal government:

And first of the first. Is the President an officer of the United States? What is an officer of the United States? This question we asked and answered in the Journal of Saturday [April 11, 1868]. Our answer is that an officer of the United States is one who derives his appointment from the government of the United States; and the answer, we think, is unanswerable. It is generally admitted. It is admitted at any rate by all who hold that Senators and Representatives are not officers of the United States; for it is the foundation of that position. And this admission is quite enough for our purpose.

Second, the Louisville Daily Journal explains that the President, like members of Congress, are not appointed by the federal government Instead, the presidency is filled by action of "the several states, which, pursuant to the Constitution, appoint electors who elect him. He is therefore not an officer of the United States." (emphases added)

Again, the Constitution repeatedly refers to the electors who elect or vote for the President. Indeed, the root of the word electors is elect. Each State provides a process which ultimately appoints the state's electors, and they, the electors of the several states, collectively, in turn, elect the President. Therefore, the Louisville Daily Journal concluded, the President is not an "Officer of the United States." More importantly, the position of President is not filled by action of the "government" of the United States. Instead, it is filled by action of voters: either electors or, in a contingency election, by state-wide delegations House delegations. 

Third, the Louisville Daily Journal makes a textualist argument—or, more precisely, an intra-textualist argument. To determine whether the President is an "Officer of the United States," the author analyzed another provision of the Constitution that uses the phrase "Officers of the United States." Specifically, the author considered the Impeachment Clause:

This is the argument. And we conceive that it is made impregnable by the language of the Constitution. Says the fourth section of the second article: 'the President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.' Herein, be it noted, the President and Vice-President are not included among 'civil officers of the United States,' but, on the contrary, are distinguished from them, the language of the Constitution being, 'The President, Vice-President, and all civil officers of the United States,' not 'the President, Vice-President, and all other civil officers of the United States.' The language implies that the President and Vice-President are not officers of the United States. It fairly admits of no other construction. 

The text refers to "all civil officers of the United States," not "all other civil officers of the United States." The President, who is expressly enumerated, is not included in this broad category of "officers of the United States." (And we have repeatedly addressed, without any rebuttal, the novel argument that the President is a military officer—he is a civilian in charge of the military.) The Louisville Daily Journal found this argument, based on the Impeachment Clause, "impregnable," and it asserted that the clause's text "fairly admits of no other construction." We agree. Indeed, the Denver trial court found this argument persuasive, in concluding that the President was not an "Officer of the United States." The Supreme Court of Colorado did not even mention the text of the impeachment clause. (That court did cite the Impeachment Disqualification Clause, which we will address below.) Rather, the four-member majority ignored plain textual evidence to the contrary. By contrast, the Denver trial court carefully analyzed this textual evidence.

Fourth, the Louisville Daily Journal turns to Justice Joseph Story's Commentaries on the Constitution:

In the words of Mr. Justice Story, [the Impeachment Clause] "does not even affect to consider them officers of the United States." See section 793 of Story's Commentaries. The argument is thus supported by the authority of the most celebrated commentator on the Constitution as well as by the language of the Constitution itself. Thus supported, we have it. We in fact do not propose to elaborate the argument on any of the points under notice.

Story took the position that the President is not an "Officer of the United States." It is right there in black-and-white. And it was repeated by a newspaper in April 1868, several months before the Fourteenth Amendment's ratification. This was not an elite legal publication intended for a small or specialized readership. It was a newspaper from Louisville, Kentucky. Story's writings were so ingrained that authors could cite specific sections to prove the point. There is no secret code. Yet, the Colorado Supreme Court, along with more than a few well known scholars, have ignored Justice Story. 

More importantly, the April 15 Louisville Daily Journal article develops its position using public reason—it advances analytic arguments and evidence. It does not merely recite its conclusions or expectations. It reads like a fully fleshed-out Marshallian judicial opinion. Indeed, its understanding of "officers of the United States" flows directly from Chief Justice Marshall's seminal opinion in U.S. v. Maurice. What we see here is a continuous analytic intellectual tradition, relying on the text of the Constitution, supported by the practice of the government since its inception, and expounded upon by Marshall, Story, and newspapers during ratification of the Fourteenth Amendment. 

Cincinnati Commercial, April 18, 1868, at 4:

On April 18, the Cincinnati Commercial responded to the Louisville Daily Journal. 

First, it addressed the argument based on the Commissions Clause:

Those who are splitting constitutional hairs to demonstrate that the Vice President and members of Congress are not officers of the United States because they are not commissioned by the President, are driven to the absurd conclusion that the President himself is not such an officer.

But what about long standing practice under the Commissions Clause? Does the Commercial address the fact that the President has never commissioned himself, his successor, any Vice President, or any members of Congress? No, the Commercial does not address such facts. In 1868, and today, those who contend the President is an "Officer of the United States" use the absurd charge as a cloak for dispensing with analytic arguments and actual evidence. 

In a post criticizing our position, Professor Ilya Somin managed to use the word "absurd" five times in the span of five paragraphs. Scalia and Garner, and leading textualist scholars, tell us that the absurdity doctrine is not based on what any single judge or law professor thinks is absurd, but is instead based on a reasonable person standard. Somin also argued that the President commissions himself by taking his oath of office. There was no evidence of this position in 1788, in 1868, and no evidence of this position today. As any federal judge can tell you, the signed commission comes before the oath of office. William Marbury learned that lesson the hard way. In 1801, on the eve of inauguration, President John Adams signed a commission for Marbury, but he did not commission himself or his successor, President Thomas Jefferson. Yet critics keep calling our position absurd. 

The Commercial continued. "He [the President] derives his appointment,' says one of these triflers, 'from the several States.' And, pray, what are the several States under the Constitution, but the United States." Triflers. You, the reader, can see: hyperbole in debates about "Officers of the United States" is not new. Such hyperbole was unreasoned in 1868, and it remains unreasoned today.

The Commercial did not discuss the Louisville Daily Journal's analysis of the Impeachment Clause. If the Commercial would not split "constitutional hairs," then members of Congress would be "Officers of the United States," and would be subject to impeachment. The Commercial does not even acknowledge the Blount impeachment trial. By contrast, the Louisville Daily Journal cited the specific section from Story's Commentaries about the Blount proceedings. Which approach is reasoned? Which approach is a naked assertion of intuitions?

The Commercial did discuss the Impeachment Disqualification Clause—the same provision the Colorado Supreme Court cited. That move is a favorite of office maximalists. The Commercial wrote:

Another bright discovery has been made. The Constitution declares that judgment, 'in cases of impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.' The President not being an officer of the United States, the conclusion is reached that his impeachment can not disqualify him for holding the Presidency, if reelected.

Both in 1868, and today, critics charge that of course the presidency is an "Office . . . under the United States," because it would of course be absurd if an impeached, convicted, and disqualified President could run for re-election and hold that office should he prevail. Three points in response. 

First, the phrase "Officers of the United States'' is textually distinct from "Office . . . under the United States." Those who refuse to split hairs see these phrases as identical. But that conclusion is not self-evident from the text. It is a conclusion that must be proven.

Second, why are the Commercial and the Colorado Supreme Court so certain that a disqualification must permanently disbar a person from holding elected federal positions? Is it absurd to suggest that the Constitution's bar on disqualification extends to appointed positions and that the people could decide that an impeachment and disqualification were unjust, and that re-election is the proper remedy? Why should a fleeting majority in the Senate take away the public's ability to return a person to elected federal positions. Disqualification, after an impeachment conviction, only takes a simple majority vote. Indeed, ambitious Senators, with eyes on the White House, may see a political value in knocking out a potential candidate in a future race for the presidency. 

Third, our position is not novel. The April 15 issue of the Louisville Daily Journal observed that there are "several very interesting corollaries" from its textualist position. For example, "a judgment in the case of his impeachment cannot disqualify [the President] from holding the Presidency if re-elected." This author reached this conclusion based on the text of the Constitution, and not some abstract position about whether it would be undesirable for a disqualified person to be elected President. Again, the editor of this newspaper would have concluded that if Johnson was impeached, convicted, and disqualified, he could have been re-elected in 1872 or in some other subsequent presidential election. Those who claim our position is "absurd" have to contend with a newspaper editor reaching this conclusion in 1868 based on the text and history of the Constitution. 

Moreover, during the Blount (1797–1799) and Belknap (1876) impeachments, others made arguments similar to those made by the Louisville Daily Journal. For example, Senator Matthew Carpenter explained that the purpose of the Impeachment Disqualification Clause was to make Senate removal by impeachment effective. Absent disqualification, after the Senate removed an officer, the President could re-appoint that person to the same office or appoint that person to a different office. The purpose of the clause was to block appointments after disqualification, not to block a subsequent election. (We discussed Carpenter's view more in depth in our post about the horrible Jefferson Davis.) Modern sensibilities, based on unsupported intuitions, have exceedingly little relevance for original public meaning originalism. Even when those intuitions are reported as contemporaneous with congressional enactment and state ratification, they carry little weight precisely because intuitions are unreasoned.

No doubt the ongoing impeachment trial of President Andrew Johnson was on everyone's mind. Indeed, on the very same page, the Commercial reported on the latest developments from the impeachment trial. It is not widely known that after Johnson was acquitted by the vote of a single senator, he was re-elected to the Senate by his home state of Tennessee. At least in that regard, Tennessee did not agree with the impeachment, and near-conviction of Johnson.

In 1868, and today, those who reject our position insist that they know the true path, the true interpretation of the Constitution's text—and, here, the only possible meaning of the Impeachment Disqualification Clause. They point to no authoritative sources, and they point to no judicial decisions establishing their position. They just know. We approach this topic with an element of intellectual humility—we acknowledge that debate on these points is long standing. And where the text admits of more than one interpretation, we should resolve to allow the widest participation by candidates and voters. That is the lesson of 1788, 1868, and today. And we might add that that is part of the lesson of 1776. Justice Scalia's admonition is evergreen: "the most important liberty [the People] asserted in the Declaration of Independence and won in the Revolution of 1776 [was] the freedom to govern themselves."

Louisville Daily Journal, April 22, 1868, at 1:

One week later, on April 22, 1868, the Louisville Daily Journal directly responded to the April 18, 1868 article from the Cincinnati Commercial. First, the Louisville Daily Journal restates the question posed by the Commercial:

'And pray,' asks the Cincinnati Commercial, alluding to the doctrine that the President is not an officer of the United States because he derives his appointment from the several states, 'what are the several States under the Constitution, but the United States?

In 1868, and today, there is a common rejoinder: if the President is not an "Officer of the United States," what is he an officer of? A foreign country? A state?

Second, the Louisville Daily Journal responds there is a difference between the United States, a collective body, and the several constituent states. 

Why, they are the several states; that is one difference. Can't you comprehend the difference between several [states] and [U]nited [States]? . . . . The United States is a political entity . . . .the several States under the Constitution are just what they were before less the powers which form the United States. 

Third, the Louisville Daily Journal reaches its conclusion. The President does not derive his appointment from the United States government. Rather, the President is elected by the electors, who are appointed by the states. Therefore, the President is not an "Officer of the United States."

It follows that an officer who derives his appointment from the several States or from any of them is not an officer of the United States. And such an officer is the President.

To be clear, the Louisville Daily Journal does not suggest that the President is an officer of the state, or something to that effect. Rather, the Louisville Daily Journal limits the term "Officers of the United States" to those appointed by the federal government. Although the Louisville Daily Journal does not provide the specific mechanics for filling "officer of the United States"-positions, we note that such positions are filled under the auspices of Article II, Section 2, that is, the Appointments Clause and the Inferior Office Appointments Clause. This is common knowledge. 

Like the April 15 article, the April 22 article, is an analytical argument, based on public reason.

We draw here only a limited conclusion about original meaning: in 1868, not all thought the President was an officer of the United States. We can draw a broader conclusion about methodology: those who argued that the President was not an "officer of the United States" used analytical arguments, based on public reason, that cited the text of the Constitution, judicial authority, established practice, persuasive commentary, and more. But those who argue that the President is an "Officer of the United States" have to disregard all of the above evidence. The Denver trial court took account of this evidence. The Colorado Supreme Court simply ignored these issues. (Those who found themselves persuaded by the Colorado Supreme Court's cursory analysis should read the trial court's decision, as well our amicus brief, to provide a contrast.)

Readers may say of course the Ohio newspaper is right and the Kentucky newspaper is wrong. But why? Those who say 'of course' are merely relying on intuition: the results endorsed by the Ohio newspaper are consistent with intuitions of how they view the Constitution. If you favor a sober, grounded, textualist approach, in connection with arguments advanced through public reason making fully-fleshed out Marshallian exposition, then the Kentucky newspaper wins the Derby.

Conclusion

Here, we have shown that a newspaper in Louisville explained in 1868 that the President is not an "Officer of the United States." The analysis cited two provisions of the Constitution. We have cited the same two provisions time and again: the Impeachment Clause and the Commissions Clause. The analysis cited, chapter and verse: Justice Story's Commentaries, and its discussion of the Blount impeachment trial, which concluded that the President is not an "Officer of the United States." And the Louisville newspaper made its analysis with sober reasoning based on text and history, and not hyperbolic accusations of absurdity. 

The argument that everyone in 1868 thought that the President was an "Officer of the United States" is incorrect and clearly falsifiable. There were clearly some people who thought otherwise. Whether it was or was not a dominant view is a difficult question. But this position is not absurd; it is just a position that some disagree with. And some of the loudest to make the charge that Justice Story's position is absurd fail to recognize that Story wrote behind the veil of ignorance. In 1833, when Story's Commentaries were published, there were no obvious political distributional consequences. By contrast, modern day critics are active proponents of a particular modern-day political result. We all know this.

The Colorado Supreme Court adopted the Baude/Paulsen charge that our position is some sort of "secret code." This charge never made much sense to us. Most codes are secret—at least for a time. But if the meaning we propose for "Officers of the United States" was or is a secret, then it is the worst-kept secret in the history of constitutional law. What we have proposed was known to Marshall, Story, the Louisville Daily Journal, and the Supreme Court in any number of majority opinions. Yet, the sort of hyperbole put forward by Baude/Paulsen has been and remains endemic in academic discussion since litigation began. Academic papers have been produced at brisk pace, and these papers made bold, novel, and hyperbolic claims. In our view, these publications cannot be trusted, because there has not been time for percolation and debate. We have illustrated that point here by falsifying the claim that circa 1866–1868, everyone believed the president is an "officer of the United States."

Still, we do not expect to persuade our loudest or our most persistent critics. In a recent post, Professor Vikram Amar wrote, "Now there are those who challenge whether the President is an officer under [sic] the United States (although there are very few prominent academics from highly regarded institutions who take that position)." It is possible that this passage was directed at us. But we cannot be sure. Why? First, the Constitution nowhere uses the phrase "officer under the United States." We suspect Amar meant "Officer of the United States," but we cannot be certain. Second, as a general matter, since 2011 Tillman, and since 2016 Blackman and Tillman have been careful to take no position in regard to the scope of the phrase "office under the United State" in Section 3. And since 2021, our Section-3-related publications and amicus briefs have focused exclusively on the phrase "officer of the United States" in Section 3. So if not us, who are the academics to which Vikram Amar is referring? Professor Lessig at Harvard? Professor Lash at the University of Richmond? Professor Amar demonstrated an inability to name names, to be direct, and to quote the Constitution correctly. He did not accurately characterize the intellectual positions of those he is debating. And he offered no arguments about "Officers of the United States" based on reason, evidence, and authority—only misplaced elitist asides. Amar's aside goes some way to show that his position about the phrase "Officer of the United States" is not part of a meaningful analytical or intellectual project. It is a good deal less. And whatever else it is, it cannot be the basis for establishing original public meaning. 

Others will still not be persuaded on the merits. The goal posts have already moved from within a decade after ratification, to the 1860s, to 1866–1868. And we have met each burden. The goal posts will shift once again, and they will demand evidence that someone argued that the President was not an "Officer of the United States" for purposes of Section 3, and that this was the dominant view. As we've explained before, such a discussion is unlikely to exist because every President to that point (and, indeed, up until Trump) had held some other government position covered by Section 3. They demand a needle in a haystack that doesn't exist. And they know or should know that there is no reason for that needle to exist. 

We think this rejoinder clarifies the narrow-focus of these critics' approach. These critics believe that Section 3 must be reviewed entirely by what was said and done about that provision in the period between 1866 and 1868. These critics believe that the eight decades of text, history, and tradition that preceded 1868 are not important. (It is no surprise that the Colorado Supreme Court majority didn't even mention the Impeachment Clause or the Commissions Clause.) These critics believe that any evidence contrary to their intuitions is irrelevant. Indeed, anyone who held a position contrary to their intuitions held an absurd position. Let's not split constitutional hairs when we are debating whether to disqualify the leading presidential candidate from the ballot! Does any original public meaning originalist actually endorse this myopic, intentionalist approach in any other context? Has the three decades of debates about new originalism taught us nothing? 

But what about their burden? Have they shown any Framer or Ratifier who argued that the President is an "Officer of the United States" for purposes of Section 3? No. The most the challengers have demonstrated is a colloquy in the Senate to support the position that the presidency is an "Office . . . under the United States," and a report by a five-member commission, which adopted a position from the Blount trial that there is no difference between an "Officer of the United States" and an "Office . . . under the United States." From these two pieces of legislative history, they form a syllogism: (1) the Presidency is an "Office . . . under the United States"; (2) there is no difference between an "Officer of the United States" and an "Office . . . under the United States"; (3) therefore, the President is an "Officer of the United States." 

The first and second premises are not self-evident, and are contradicted by much evidence we have put forward. We have some new evidence regarding the first premise. The Succession Clause provides that Congress can declare "what Officer' can act as President in the event of a vacancy. That provision refers to an "Officer," not an "Officer of the United States" or an "Office . . . under the United States." Around the same time that the Louisville Daily Journal and the Cincinnati Commercial were debating who was an "Officer of the United States," another Ohio newspaper put forward a careful textual analysis concluding that there was a difference between the Constitution's different references to "offices" and "officers." On April 15, 1868, the Cincinnati Daily Gazette observed that the Succession Clause uses the word "officer," and not the phrase "officer of the United States." The Cincinnati Daily Gazette explained that the former category (i.e., "officer") is a wider category than the latter (i.e., "officer of the United States"). The former extends to "officers of the United States" and also includes, among other positions, the legislative or presiding officers of each house of Congress—the Speaker of the House and the Senate President Pro Tempore. That is, the category of "officers" in the Succession Clause extends to "any officer under the Constitution and law of the United States." We read the word "Officer" in the Succession Clause in a similar fashion. 

Furthermore, the Cincinnati Daily Gazette article makes another textual argument. Article VI refers to "executive and judicial officers . . . of the United States," which leaves the implication that legislative officers also exist. Again, there is no secret code which was invented by Blackman and Tillman in 2008, 2016, or 2021. These intellectual positions about the scope of the Constitution's "office"- and "officer"-language were recognized in 1788 and 1868, and it is no surprise that the same positions should be advanced today. 

But even if there is decisive evidence for the first two premises, a substantial burden still needs to be satisfied to reach the third conclusion—a conclusion which would restrict the right of the people to govern themselves. The challengers have not met this burden. Not even close.

Comments

[MoreCurious]

This poor, dead horse ought to be peacefully and quietly laid to rest. I don't have a strong feeling about this issue, but I know damn well that a citation to the Louisville Daily Journal -- which apparently breathed its last breath in the same year that the article cited by Blackman was published -- is not going to convince me one way or the other. Give it a rest, Josh, you're not going to change any minds here.

[Lee Moore]

The horse is still breathing. Let us hope that SCOTUS shoots it in the head - one way or another - before too many more weeks have passed. But precedent suggests that Roberts and Kavanaugh at least will be eager to punt, if they can find a way.

The horse will wheeze on.

[Don Nico]

As long as Josh lives and breathes.

[Dilan Esper]

Maybe 100 years from now some law professor will opine on some legal issue that was debated during the Monica Lewinsky scandal by pointing to the some pieces in the National Enquirer.

[John F. Carr]

By citing the song "Devil with a Blue Dress On".

[Drewski]

"A Raking Shot at Some Accepted Doctrine. This article appears to be a response to another article from the Commercial, a Cincinnati newspaper. The Louisville Daily Journal begins by stating that others contend as 'accepted doctrine[]' that 'the President of the United States is an officer of the United States.'"

So Josh's source claims that the original public understanding of the Constitution is that the President is an officer, yet he uses this as evidence that it is not the original public meaning because a single anonymous writer disagreed. I think I'm fully convinced now that Josh's argument doesn't just lead to bad results but is doctrinally wrong.

[Ike B.]

It is entirely outcome-derived argumentation.

[Lee Moore]

I don't think Josh is claiming that. It would be helpful to be able to read the whole newspaper article(s) but it seems to me that the newspaper's reference to "accepted doctrine" is not necessarily an acknowledgement that the doctrine is "accepted" in the sense of being generally believed, but "accepted" in the sense of a begged question, or an assertion ex cathedra (the cathedra in question being the editorial desks of other newspapers.) Or if you prefer, swallowed whole without prior inspection.

"yet he uses this as evidence that it is not the original public meaning because a single anonymous writer disagreed"

Again, I think this is a mistake. He (or they) state explicitly that they are using this ancient newspaper article only to refute the claims of their opponents that there's is no contemporaneous evidence of anybody denying that the President is an officer of the United States.

It isn't a single source btw, a second source, the Washington National Intelligencer, is also mentioned.

Nor are the credentials of the writer of the Louisville article relevant. Unless it turns out that the newsaper article was written by AI in 2023.

[Dr. Ed 2]

If the President were an "Officer OF the United States", there would be no need for impeachment proceedings because the United States could undelegate his authority.

[CDL]

1. The US Constitution creates the [office of the] Presidency & expressly sets out the ineliminable and necessary conditions of qualification for appointment [election] to it. If the Presidency is not an office under the Constitution, what is it?

2. One answer is that the Presidency is a sui generis institutional integer of US sovereign power. From this, however, it does not follow that a person appointed by election as President is not an "officer of the US".

3. Impeachment proceedings can be explained as the exclusive Constitutionally-mandated condition precedent by which the Presidential officer, other than by process of Constitutional election, may be stripped of the authority of his office.

4. That the Constitutional right to commence such proceedings be reposed in the Congress, is explicable as an instance of the Constitutional fact that Congress is constituted according to the foundational principle that it be an equal but separate branch with limited authority to exercise the distributed sovereign power of the US.

5. The institutional integers of US sovereign power [Presidency, Congress, Judiciary] are distinct from the persons who happen to exercise authority conferred by or deriving from such power.

6. The Constitutional repositories of that distributed sovereign power are not "delegates". They are integers of that power, with a sui generis authority exercisable within the mutually-limited scope of the distributed conferral of that power.

7. Now, whether the ample terms of Am. 14 apply to persons occupying or who have occupied the [office of the] Presidency, is a question which can't obviously be answered on the supposition that, if the President be a Constitutional "officer", he *must* be liable to their disqualifying conditions, whether directly or indirectly. There may be reasons why a President, even if a officer of the US, either isn't caught by those ample terms or is immune (with whatever qualifications, if any) from their application.

8. At any rate, whatever be the material relevance of 1-7, the notion that usage & conjecture relating to the Constitutional meaning of the disputed term (however well-informed), as sourced in journalistic publications (even if nearly-contempraneous), can remotely supply evidence which must bear on the juristic task of construction, is as fanciful as it is risible.

[Brett Bellmore]

"4. That the Constitutional right to commence such proceedings be reposed in the Congress, is explicable as an instance of the Constitutional fact that Congress is constituted according to the foundational principle that it be an equal but separate branch with limited authority to exercise the distributed sovereign power of the US."

It's still more explicable from the perspective that the Constitution does not actually set up a system of equal branches, but instead was aiming for limited legislative supremacy:

A: Congress is invested with the power to remove members of other branches, for instance, but the other branches have no power to remove members of Congress.

B: Congress may over-ride a Presidential veto, but Presidents may not override a legislative refusal to enact.

C: Members of Congress are given explicit (Though limited) immunity from arrest. Nobody else is.

Not co-equal branches. Legislative supremacy, but only to a degree.

[Sarcastr0]

This is a wild new thought you have.

But as often is the case, it is overdetermined by your scope of inquiry. By choosing which branch to start from, I could argue each of them is supreme, but only to a degree.

You look only at the checks Congress has on other branches. But what about
-Judicial review - the Supreme Court is supreme because it is final.
-The very existence of the veto
-Congress cannot choose heads of federal agencies and high court appointees, only consent or not consent
-Executive power is first mover in any actual government action.

[Stephen Lathrop]

It is not a new thought at all.

Note also that Brett's comment neglected a whopper I know he is familiar with—the congressional power to limit the extent of the Supreme Court's judicial review. Here, from Article 3, Section 2:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Brett gets in trouble because he is tone-deaf to practical social limitations on the extent of abstract principles. He follows logic right out the window, even when what's outside is a miasma of conspiracy theory.

There is a flip side to that vulnerability. Brett's gimlet eye for rules, and principles, along with his preference for hyper-literal language interpretations, seem sometimes to equip him with above-average sensitivity to valid insights distributed diffusely across constitutional language, or among judicial decisions. The point about, "Legislative supremacy, but only to a degree," examples what I am talking about.

[Tom for equal rights]

Lathrop – you misrepresent Brett’s final comment which is a reasonable assessment, perhaps intentionally misrepresent his final comment. Based on that misrepresentation you chose to insult him.

“Not co-equal branches. Legislative supremacy, but only to a degree.”

[Brett Bellmore]

I wasn't in any way insulted; Lathrop is right: I tend to be hyper-literal, which is both a strength and a weakness.

[Brett Bellmore]

On jurisdiction stripping, I tend to agree with Storey. Article 3, section 2 says,

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

The next paragraph doesn't contradict this grant, or limit it, it simply empowers Congress to decide which courts will hear which sorts of cases. The first paragraph of Section 2 does NOT admit the possibility of placing something entirely beyond judicial reach.

This is not a point the Court has chosen to contest, though.

[Brett Bellmore]

Judicial review: Only implied, not explicit, and judges can be impeached.
The veto can be overridden, thus legislative supremacy.
Appointments: As I said, limited supremacy.
First mover: But Congress can impeach. Their limited immunity protects them while they're doing this.

I'm not suggesting that the founders were aiming for a really robust form of legislative supremacy, but the legislature IS, constitutionally, "first among equals", it has been equipped with the tools to win any fight so long as that fight is confined within the law.

[Sarcastr0]

The Constitution includes the parts that are implied.
The veto can formally be overridden, in practice it's a very good check.
So, too, impeachment is in practice a pretty weak check.

The Constitution is a document that was meant to function in the real world.

Limited supremacy is what *every branch has* in one way or another over each of the others. That's the whole thing.

[Brett Bellmore]

No, every branch does NOT have "limited supremacy".

The two other branches are equipped to resist the legislature to some extent, if it is conflicted. But only if it is conflicted.

A united legislature can remove any judicial or executive branch officer, right up to the President. The judiciary and executive can't remove members of the legislature at all.

That's the ultimate trump card that makes the legislature supreme, but only if it is determined to be.

Just as the veto allows a President to resist legislative initiatives, but only if the legislature is divided. A united legislature can steam roller right over a veto, and impeach a President who refuses to enforce the newly enacted law.

And the Supreme court can rule a law unconstitutional, but Congress can rule said Supreme court majority unemployed if it chooses.

The legislature has the big guns. That it rarely pulls them out doesn't change that.

[Ike B.]

This has always been my sense of it, too, and in historical context it would align well with the sloughing off of the monarchy. But I'm curious, Brett, does this factor into your assessment of Section 3, or was that more just a tangential commentary on CDL's fourth point?

[Brett Bellmore]

Just tangential commentary.

[Ike B.]

Got it, thanks!

[Sarcastr0]

You take extreme cases that will never happen and argue this has functional relevance.

And you're still focused on what Congress can do. I could say to say the same thing about the Supreme Court.

The Supreme Court can rule any executive of Congressional action *including their own impeachment* unconstitutional. So too with stripping jurisdiction.
They can also effectively neuter an executive's agenda should they take a notion.

The executive can just ignore any action of the other two branches, since it's the one executing and moving after all. It has the military ffs!

I think your point of view is influenced by where you started. I also think your inquiry is fundamentally wrong, since you're looking at exercises of power well outside of that which would occur in reality in order to get insights into what is a deeply worldly and functional document.

[Brett Bellmore]

"The Supreme Court can rule any executive of Congressional action *including their own impeachment* unconstitutional."

The Court could also order that it would be unconstitutional to not take the next Powerball prize and divide it up between them, and to about as much effect.

The Court's rulings have to pass at least a laugh test, and a test transparent self interest, or else when they're impeached they'll have no allies.

They might be able to resist a particularly egregious case of jurisdiction stripping, since there are legitimate questions about how far Congress can go, and the rest of the judiciary to back them.

[Sarcastr0]

The Court’s rulings have to pass at least a laugh test, and a test transparent self interest

So too with the legitimacy of Congressional action. And also for the President.

See how this all works?

[Stephen Lathrop]

By the way, Sarcastro. You strike me as sort of a Bellmore antipodes. I like you as an impressive rule-of-reason guy. But in a way similar to Bellmore with his intense language focus, you have a tendency to evaluate abstract reason with a microscopic disregard for broader context. And where Bellmore is hampered by disregard of operative social constraints, I see you as hampered by over-solicitous concern for social convenience, and maybe even for sticking inside an Overton window which defines a particular milieu in which you thrive.

I am not saying you are as far out of kilter as Bellmore often is. More that your pattern of advocacy is recognizable as interestingly opposite to Bellmore's—which implies a recognizable pattern of strengths, but also a recognizable pattern of weaknesses.

[Magister]

If the President were an “Officer OF the United States”, there would be no need for impeachment proceedings because the United States could undelegate his authority.

Cabinet members are officers, and I've heard the House is looking at impeaching one (or more) of those; an unnecessary power by this argument.

The United States acts through the branches of government. Congress removes an officer by impeachment; the executive branch removes an officer by action of the President (applying to the President, as when Nixon resigned) or Vice President (who can remove himself, as when Spiro Agnew or John C. Calhoun resigned).

[Noscitur a sociis]

This is an unusually dumb claim, even by Dr. Ed's high standards: all civil "Officer[s] OF the United States" are subject to impeachment (it's right there in the impeachment clause, albeit punctuated correctly).

[David Nieporent]

This is an unusually dumb claim, even by Dr. Ed’s high standards

I'm afraid I'm going to need to ask you to show your work for that one.

[DaveM]

I’m reading this post, with its careful, step-by-step analysis of the differences between a reasoned versus an intuited approach to understanding the extremely small spaces between “office”, “officers”, “of”, and ”under”, and I’m comparing it mentally to the algorithmic matching process by which ChatGPT and friends select which word comes next in response to a prompt. I’m realizing that the real danger of AI isn’t that it will ever be smarter than us, but that we’ll misuse it and allow it to clear away both reason and intuition like a bulldozer clearing a field of trees.

[JFree]

We will always misuse and abuse any technology at our disposal.

As Humpty Dumpty once said The question is which is to be master - that's all.

[I Callahan]

The United States legal system in all its glory. Make things as vaguely written as possible so attorneys can get rich challenging it at some future date.

[Bob from Ohio]

"attorneys can get rich"

Lawyers write and interpret the laws so, yes, its good to be the King.

[Commenter_XY]

Professor Blackman...nice historical find. Well done.

What stood out to me was the similarity of what was said then, and now. People have not really changed all that much.

[Rev. Arthur L. Kirkland]

What causes you to claim Prof. Blackman found it? Rather than, for example, John Connolly?

Other than that, though, great comment!

[Jason Cavanaugh]

FFS Blackman, if ever there was a post of yours that needed you to swallow your ego and use the "Read More" feature, this was it.

[I Callahan]

Physician, heal thyself.

[Zarniwoop]

Came here to say this.

JFC, use the frackin’ “Read More”.

[Michael P]

The real offense here is the failure to use "Read More" on the main page.

[Frank Drackman]

I ANAL and don't want to tell the Emperor he's nekkid,
but who gives a (Redacted) what any Newspaper said about something 150 years ago? in 1861 the Charleston Courier probably had some good articles about how Slavery was allowed under the Constitution.

Frank "Happy I ANAL"

[MyWag13]

Also, words from an actual LAW of 1862.

Quoted from the Ironclad Oath Law of 1862 ….

“any office
….. excepting the President of the United States.”

Insurrection, Disqualification,
and the Presidency

28 Pages Posted: 8 May 2023
John Vlahoplus

Date Written: April 9, 2023
[snip]
C. Specific References in Related Federal Statutes

In July 1862, Congress prescribed the Ironclad Oath to exclude rebels and their supporters from positions in the federal government. The oath applied
to everyone holding

“any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States.”

The statute recognized that the President holds an “office under the government of the United States,” language virtually identical to Section 3.
[snip]
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4440157

[Stephen Lathrop]

MyWag13, can you say more. When I check the text of the Ironclad Oath, here is what I find:

I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.

You have not given your source for the language which excludes the President. The ssrn abstract you link suggests an opposite conclusion, but I have not been able to access the entire article. I am particularly wondering if the quote you cite had something to do with politics, and a particularized exemption for the sitting president at the time of passage you refer to. Please quote the whole text of the law. Because the history of the oath seems to involve multiple variations, passed at different times, can you clarify that too?

[Noscitur a sociis]

That is the text of the oath itself. The law that prescribed it said that it had to be taken by "every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military or naval departments of the public service, excepting the President of the United States". 12 Stat. 502. The specific exlcusion of the presidency certainly suggests that the drafters of this legislation thought it would otherwise be included as such an office.

(Presumably the presidency was excluded because the constitution prescribes a different oath of office for it, which separately undermines the suggestion Profs. Blackman and Tillman have raised previously that it might have been common practice at the time to take a multiple oaths of office.)

[Stephen Lathrop]

Thank you again, you answered the question I had in mind.

[David Nieporent]

As should be 100% clear from what he wrote, he's not talking about the text of the oath, but who was required to take it. The "source" is the statute that enacted the oath.

[hobie]

What does this have to do with anything? It excludes the president from having to take the Ironclad Oath. Never does it say the presidency is an office or not. In fact it seems to say that all officers except that of the president

[Noscitur a sociis]

As I noted above, the requirement applied to "any office of honor or profit under the government of the United States, either in the civil, military or naval departments of the public service, excepting the President of the United States". This construction means that (in the drafters' view), the presidency is an "office of honor or profit under the government of the United States" in at least one of the "civil, military or naval departments of the public service".

[Brett Bellmore]

Well, sure. And it's things like that which explain why I say that the "not an officer" position isn't frivolous, but I don't expect it to carry the day.

Really, I think all we're looking at here in the 14th amendment is bad drafting, not an intent to exclude the President from Section 3's application. It wouldn't be the first amendment to be badly written.

[VinniUSMC]

Use "Read More".

[tylertusta]

If you're trying to have a scholarly debate in a matter involving Trump, you're going to be disappointed.

[lhfry]

“No evidence exists that any member of Congress, member of a state legislature, political activist, journalist, or hopeless crank during the 1860s thought a president was not an officer of the United States.”

I believe this is the statement by Graber being refuted. Has it been refuted or not?

[Michael P]

Yes. (It has been refuted.)

[Stephen Lathrop]

Ihfry, that statement did not need refuting. It was made recklessly in the first place. History is replete with statements by hopeless cranks from the past. Those lie buried like long-dead roots athwart paths of modern enquiry, and later erode out to stumble hopeless cranks who wander down those paths today.

[Mr. Bumble]

What pithy prose.

[Bob from Ohio]

"statements by hopeless cranks"

oh my.

[Rev. Arthur L. Kirkland]

I recommend John J. Connolly’s article. It is better than some other analyses of the Louisville Daily Journal’s relevant content in more ways than one.

[OtisAH]

Okay, you got me hooked. Only thing I’m not clear on is whether your new show is an homage to Candid Camera or an updated Jackass? Either way I’m watching. When does it air?

[gVOR08]

What's the point to this apparently endless discussion? The Federalist Justices were selected for their ability to write cherry-picked "Originalist" opinions. They don't need your help.

[ObviouslyNotSpam]

I think he wants to be on the list. (Unless he's already on the list?)

[Social Justice is neither]

Maybe to keep you marxists from destroying the republic in order to save "Our Democracy" as is so often piously intoned.

[Sarcastr0]

Most folks know your usual level of engagement, but I would like to point out the utter lack of legal analysis here.

A desired outcome and spite are insufficient, Social.

[Michael P]

Thanks, tone police!

A desired outcome and spite are insufficient, gVR.

[bernard11]

I would like to point out the utter lack of legal analysis here.

Let's add the utter lack of understanding of what Marxism is.

[Stephen Lathrop]

Our answer is that an officer of the United States is one who derives his appointment from the government of the United States; and the answer, we think, is unanswerable.

Here is the answer to that unanswerable conjecture:

They all swear an oath to support the Constitution, not to support the government. Everyone who swears an oath of loyalty to the Constitution is a person who reports ultimately to the sovereign People, not to the government. That is why all the officers are subject to impeachment. To be impeached and removed is to be fired by the authority of the sovereign People themselves. Everyone subject to impeachment is an officer of the United States.

Reading the excerpts in the OP, I find myself wondering if the context of this bit of journalistic back-and-forth was not some dispute over political patronage. It looks motivated by a question whether lawsuits might protect postmasters (or other holders of patronage plums) from the vigorously active spoils system.

One other note: Blackman, without being alert to it, seems to have stumbled on evidence to show the onset of decapitated constitutionalism dates to before the Civil War. The notion I refer to by that term seems traceable approximately to the Jacksonian era. I suggest research along those lines might prove a subject for an original and usefully enlightening book of history.

[Michael P]

What do you think "conjecture" means?

[Stephen Lathrop]

Something that does not properly assert it is unanswerable?

[Noscitur a sociis]

Reading the excerpts in the OP, I find myself wondering if the context of this bit of journalistic back-and-forth was not some dispute over political patronage.

It was not: as the John J. Connolly piece that first discussed the articles explains, the topic was President Johnson's impeachment trial: there was no vice-president, and the presidential succession statute in effect at the time had the president pro tempore of the senate as the next in line. The topic of discussion was whether he was an "Officer" who could be so designated under Article II.

[Stephen Lathrop]

Thanks for that.

[arpiniant1]

Why not quote the article whole, without fragmenting it?
Was the source a constitutional scholar?
The source admits that people at the time assumed the President was an Officer of the United States, so admitting this, does this not refute the point Blackman is trying to make, IOW, if the consensus was in 1868 that the President was an officer, then the writers of the 14th would have acted accordingly

Do you really think the writers of the 14th intended that Robert E Lee could run for President?

[Rev. Arthur L. Kirkland]

The scholar who found this information does not agree with the assertions of the partisans hawking it as a miracle cure.

[Bob from Ohio]

Lee had been an "officer of the United States" [army officer] so was subject to the clause, so had Jeff Davis been [Secy of War and I think an army officer] covered.

[hobie]

Lame. So you're saying article 3 would apply to any president who once held the military position of officer, but not to a lifelong civilian president?

[Please, Daivd, Seek Help]

That's the argument, but it seems really hard to believe that the people drafting the section thought it was very important to disqualify someone who had ever been a dog catcher but not to disqualify someone who happened not to, even when both their behaviours were identical and they were seeking the same office.

[JFree]

Seems to me that the 1868 context is

Who would have ever believed that electors – screened to eliminate insurrection tendencies – would elect an insurrectionist?

Who would have ever believed that a Congress – screened to eliminate insurrection tendencies – would certify the Electoral College results if they elect an insurrectionist?

All of which would occur because someone argued that neither the electors nor Congress – repeat, both screened for insurrection tendencies – had any power/authority to make a decision to not elect/certify an insurrectionist as President

[JFree]

As an aside - Section 3 was enforced before the 14 amendment was even written or ratified. The 14 amendment came into existence precisely because Southern states sent Confederates to Congress in late 1865. Including Alexander Stephens, the Vice President of the Confederacy.

Apparently their mistake was that they sent Alexander Stephens to Congress, where he could be rejected BEFORE the 14 amendment. Rather than being sent to Blair/White House where he could have become Veep or Prez after the 14 amendment cleverly ensured he must be seated.

[Brett Bellmore]

It was up to the Confederates who they sent to Congress. They only had limited say in who got sent to the White house, since they had not nearly enough votes in the Electoral college to dictate the outcome of a Presidential election.

[JFree]

Whew. That was a stroke of luck then.

[Brett Bellmore]

No luck about it; If it had been the other way around, it would likely have been the North seceding...

[markm23]

The south was very much in the minority. Just look at the 1860 election results. The two northern candidates (Lincoln and Douglas) together got 59% of the popular vote. Douglas's total included a few southern votes, I guess from those that thought walking out of the Democratic party and forming a separate party was extreme as well as stupid, but Lincoln wasn't even on the ballot in 9 southern states. Douglas got more popular votes than the southern Democrat candidate - but lost every state but Missouri.

[bernard11]

Yet Magliocca identifies 25 former Confederate soldiers who were chosen as electors by southern states in 1868. Among them are former Confederate generals.

[JFree]

Do you know what states?

Georgia and Louisiana would be a very different story re electors than the other Southern states readmitted in mid-summer 1868 (in the immediate aftermath of Johnson's impeachment) when they ratified the 14th. Their electors were for Seymour. The elections were extremely violent.
In Georgia's case, they were put back under military rule in 1869 and not allowed representation in Congress (readmission to the Union) until 1871.
In Louisiana's case, they had a totally reconstructed constitution in 1868. Even elected a black man (Willis Menard) to the House for a partial term in a by-election. His opponent challenged his election and the House refused to seat either and left the seat vacant. But the state became really violent for the rest of Reconstruction (and beyond of course).

The other readmitted Southern states - NC, SC, AL, FL, AR, TN - voted for Grant so presumably even electors who had fought for the Confederacy were deemed ok.

TX, MS, VA hadn't ratified the 14th so were still not readmitted.

[John F. Carr]

Seeing the long series of long posts, a quote from a now old TV show comes to mind. Family Ties had a brief flashback to 1974 with a young Alex saying "Mommy, they're impeaching my president".

[Rev. Arthur L. Kirkland]

A strong, scholarly institution would hire Connolly and ditch Blackman.

I sense Blackman need not worry about South Texas College of Law Houston or the Volokh Conspiracy.

[Mr. Bumble]

Has any President, ex-President and possible future President ever generated as much legal controversy and subsequent opinion?

[apedad]

No but how many former presidents have claimed the election was stolen - and then all the legal issues that follow from that claim?

[Mr. Bumble]

This all started well before the election of 2020.

[Brett Bellmore]

Well before. It's not like all those changes to election administration prior to the 2020 election were uncontroversial. And there were no short of complaints that electronic voting machines were insecure, too.

I note that the response to cyber security professionals confirming that insecurity has been a combination of, "Shut up, somebody might pay attention!" and "We'll do something about it after the 2024 election. Doing it before would be inconvenient."

[Magister]

A long history of complaints about election mechanisms (the butterfly ballot and hanging chads and so on in 2000, insecurity of the resulting electronic voting machines in 2004) which had nothing to do with Trump. It's as if any very close election generates a lot of furor.

Regarding other legal controversy, there may not have been a previous president who so vigorously violated so many norms. Has the emoluments clause ever come up before, and was it really unreasonable in the case of Trump? But Nixon generated a lot of legal challenges. If you extend generating controversy to policies implemented, civil rights legislation and the Great Society probably generated more legal controversy continuing long after Johnson's death.

The craziness of the Republican Party today explains why it continues; presented with the smoking gun then, the Republicans of 1974 abandoned Nixon, and that was the end for him.

[Brett Bellmore]

Trump violated no norms concerning the emoluments clause. An attempt was made while he was President to enforce a novel interpretation of that clause to his disadvantage.

It was quite the normal thing until recently for Presidents to be wealthy, and have commercial empires that would generate income, yes, even foreign income, while they were President. Washington, for instance, made a good income off a smokehouse, and the hams were sometimes bought by foreign governments.

Emoluments were never, before Trump, construed to include income derived from ordinary commercial activities.

[Absaroka]

"...and have commercial empires that would generate income, yes, even foreign income, while they were President."

I tried to think of a president who I would describe as primarily a business tycoon. I wasn't having much luck, so I went through the wiki list of presidents back to Millard Fillmore without really finding one.

To be sure, presidents have had businesses - GWB had a baseball team, Truman ran a haberdashery, Grant went broke running some business, Carter had the peanut farm. Many were successful lawyers, which is a business of sorts. Many were wealthy - JFK, the Roosevelts, Hoover. Bush I is frequently described as 'an oilman', but he also served in a lot of pre-presidency government posts. And that seemed pretty typical if you browse through the biographiies. I couldn't find a single other president who matched the Trump profile of very wealthy businessman who stepped straight from the boardroom to the Oval Office. Perot would have been another example, but alas...

If in fact businessmen-presidents on Trump's scale were common, could you name some that you think are good examples of the type, and sketch the foreign business ventures you think were problematic? Personally, I don't see some ambassador buying a ham from George W. being problematic any more than an ambassador buying a book from Amazon would be if Bezos was elected. I'm looking for something more along the lines of taking your son along on official trips to cut megadeals (which I think is sleazy, but isn't really an example of a prominent business tycoon abusing the office, because Biden isn't a business tycoon).

[Bob from Ohio]

"very wealthy businessman"

George Washington

"His estate was valued at $780,000 in 1799, approximately $429 million in today's money. Relative to the American economy of the time, his estate of $780,000.00 represented 0.19% of the gross domestic product." Finances of George Washington wikipedia

[Noscitur a sociis]

Was that recent?

[Brett Bellmore]

Washington was, relative to the size of the economy, wealthier than Trump. More recent Presidents have not been as proportionately wealthy, but they've ranged from men of fairly ordinary means to undeniably rich.

[Bob from Ohio]

Not recent but highly relevant. GW chaired the convention and everybody assumed he would be the first president.

[Magister]

There's a ton of norm breaking by Trump.

Presidents since Carter have separated themselves from active control or ownership of their personal assets, except Trump, Presidents since Ford (and belatedly Nixon) have released tax returns, except Trump. Presidents haven't removed inspectors general as frequently as Trump did. Presidents have protected DOJ investigations from interference; Trump tried to use the DOJ to pursue his own vendettas and to blunt inquiries into his administration's wrongdoing.

On the specific emoluments front, Trump sold his Washington DC hotel in 2022, and the subsequently rebranded hotel with essentially the same space gets a lot less spending than it did under the Trump name. Go figure.

[Brett Bellmore]

"Presidents since Carter"

IOW, you're conceding the norm of not actively controlling one's holdings while President is quite recent. Really, it was only possible because we started to get Presidents whose wealth was primarily investment derived, rather than a product of an actively managed business.

[Magister]

No new norms after George Washington? This is an unexpected development of originalism. Four decades of a norm is long enough to investigate why it's being broken.

[Brett Bellmore]

Norms are, by definition, not enforceable, so they're not that big a deal. And if they're recent, and have negative consequences? Maybe they should go away.

The emoluments clause isn't a norm, though. It's a constitutional mandate, a law. And, yeah, laws don't change their meaning without being amended, so if running a business wasn't an emolument for Washington, it wasn't for Trump.

[Absaroka]

"Norms are, by definition, not enforceable, so they’re not that big a deal."

I profoundly disagree. You can't make everything a bright line law.

I don't think we want a bright line law that presidents can't take their kids on state trips. If a president takes his 6 year old daughter along and introduces her to the Queen, I sure don't object. I do object to taking your adult son along while he is making megabuck deals. That's the kind of difference that norms handle better than laws.

[bernard11]

How about running a business which, besides its normal activities, has a sideline selling its goods and services at exorbitant prices to foreign governments, including those not particularly friendly to the US, and lobbyists?

[Mr. Bumble]

Of course you're referring to the many Biden LLCs.

[Absaroka]

"How about running a business which, besides its normal activities, has a sideline selling its goods and services at exorbitant prices to foreign governments, including those not particularly friendly to the US, and lobbyists?"

That's going to be fact dependent. If I'm the mayor and there is a pattern that people who buy $1000 glasses of lemonade from my kid's lemonade stand have their zoning variances approved, that's IMHO not even just norm breaking, that's criminal bribery. If people are just buying the same 25 cent lemonade as everyone else, no problem. There are gray areas in between.

I presume you are talking about Trump? I didn't use that example because A)I'm not familiar enough with the details to have strong opinions and B)I was responding to Brett, and I suspect he disapproves of Hunter's business dealing more than he disapproves of the Trump clan's dealings.

[Brett Bellmore]

"has a sideline selling its goods and services at exorbitant prices to foreign governments"

I suppose it depends on whether said goods and services are on offer to, and occasionally bought by, others besides foreign governments, on the same terms. Some things are just sold at exorbitant prices to everybody, after all.

If the foreign governments are just paying the same as others, that's just business.

If they're paying more? That's still not an "emolument", as the term was understood at the time the Constitution was adopted. An "emolument" is where somebody supplements the pay for an office. Creating a conflict of interest for the one receiving the emolument; Who are they working for, the source of one of their paychecks, or the source of the other?

It might well be a laundered bribe, though.

[David Nieporent]

Norms are, by definition, not enforceable, so they’re not that big a deal.

That is more profoundly wrong than anything you've ever said here, and that includes when you get the law entirely backwards. Norms are a big deal because they are not enforceable.

[David Nieporent]

That’s going to be fact dependent. If I’m the mayor and there is a pattern that people who buy $1000 glasses of lemonade from my kid’s lemonade stand have their zoning variances approved, that’s IMHO not even just norm breaking, that’s criminal bribery. If people are just buying the same 25 cent lemonade as everyone else, no problem. There are gray areas in between.

Right: gray areas like, "What if I order 10,000 glasses of lemonade at the list price of 25¢?" In isolation, buying the lemonade at the same price applicable to everyone else is kosher. But buying it in mass bulk quantities that nobody else would do?

[Absaroka]

"“What if I order 10,000 glasses of lemonade at the list price of 25¢?” In isolation, buying the lemonade at the same price applicable to everyone else is kosher. But buying it in mass bulk quantities that nobody else would do?"

That's a good one! I'm seeing a little girl frantically stirring pitcher after pitcher of lemonade. And then dealing with business taxes and the health department :-). By the time Dad brings home that many of the little frozen lemonade containers, that variance is getting denied!

[David Nieporent]

and the hams were sometimes bought by foreign governments.

What's the source for this claim?

[Brett Bellmore]

It's been a while since I saw that. Possibly I've confused it with the easily documented fact that he gave hams to them. Though I guess that would be the precise opposite of an emolument, at least on his part.

[gVOR08]

Yup. Elect a clown, you get a circus. Elect a career criminal, you get court cases.

[Mr. Bumble]

Elect a clown and a crook and you get Fulton County DA Fani Wallis.

[Magister]

Wake me when Fani Willis gets the nuclear launch codes; until then, it's at most a problem for Fulton County. There are better examples that wouldn't appear prompted by Trump cult membership, like Senator Menendez.

[Mr. Bumble]

You are in such a deep TDS coma that nothing would awake you. Lucky the current custodian of the launch codes didn’t need to use them when no one knew where the Sec. of Defense was.

As for Wallis, thanks to her the Georgia case may just disappear with an Emily Litella “never mind”.

[Magister]

If the Fulton County DA is misusing funds, that's a problem for Fulton County. The motion complaining of this was all smoke, but we'll probably find a little fire.

If she's engaged in corruption in prosecuting cases, which hasn't even been alleged outside of conspiracy theory circles, that would be very bad. But it should be corrected by judicial review, unless you think every official in a Republican controlled state is corrupt and with the same objectives, or the Fulton County DA is such a criminal genius whose wrongdoing can never be discovered. ("How dare the Fulton County DA get away with crimes when Donald Trump couldn't get away with his crimes" is really not much of a defense of Trump.)

The only Trump derangement syndrome sufferers are his cultists, like Bumble.

[Mr. Bumble]

Next up: cries of racism.

[Magister]

I'm pretty sure that you chose her because of prosecution of Trump, not race. Plenty of corrupt politicians of all races, and she should be held to the same standard as any other politician.

But crying racism in a comment where you predict cries of racism makes you a clown, not a Nostradamus.

[Mr. Bumble]

I chose her because of the construction of gVOR08's comment
(clown and crook) which seems to apply to her.
As for racism, whenever any "person of color" is involved in a controversy, cries of racism usually follow (see Claudine Gay blaming her firing on racism).

[Magister]

Digging deep for a clown/crook who isn't a Trump ally! I even suggested Senator Menendez, who is both (at least allegedly).

[Mr. Bumble]

No digging required. She is a clown and a crook bringing a specious case which is relevant tangentially to the subject being discussed: removing Trump from running for president.

[Magister]

The topic is whether the president is an officer for purposes of the 14th amendment. The Fulton County case would not stop Trump from being President, as the charges are not relevant to the 14th amendment.

Bumble has a bad case of Trump Cult Derangement Syndrome.

[TwelveInchPianist]

"If the Fulton County DA is misusing funds, that’s a problem for Fulton County."

The allegation was that they were profiting from prosecuting of the case, creating a conflict of interest.

[Magister]

But that's a problem for Fulton County. The defendants get an issue they can use to delay, grift and maybe get a favorable court ruling on. Why would they undertake corruption on the most visible case in Fulton County for a long time? If the answer is stupidity, that would also be to the defendants' advantage.

[Bruce Hayden]

Is it? The DA, and her paramour, the lead prosecutor are prosecuting in the name of the state, presumably for the benefit of the state. But appear to be doing so for their own financial benefit. At a minimum, it is the appearance of impropriety. But prosecuting for financial advantage effectively also negates the assumption that the prosecution was for the benefit of the people (and the state).

[gVOR08]

Which has what, Bumble, to do with the current topic?

[I Callahan]

Claiming the election was stolen isn't illegal, no matter how many times the ambulance chasers in these threads say otherwise.

[Magister]

It's the subsequent election fraud, seditious conspiracy and insurrection that are illegal.

[Mr. Bumble]

Alleged.

[Magister]

Proven for many Trump supporters, even if the mob boss manages to evade justice (not looking good for him, though).

[Rev. Arthur L. Kirkland]

.

Alleged.

Alleged. Then prosecuted. Then convicted. Then sentenced.

With more convictions and sentencings likely to follow, as prosecutors continue to work their way up the insurrection ladder toward the biggest un-American assholes.

Why does this blog attract so many supporters of un-American assholes?

(Answer)

[Stephen Lathrop]

I Callahan, I am a little unsure of that. I have been meaning to ask. Is there any federal criminal consequence that could reasonably be enforced against oath breaking? Defrauding the government, or something like it?

There is no reasonable question that when a defeated candidate did what Trump did (and continues to do), and claims non-existent election fraud, after an election has been certified, that as a matter of fact an oath to defend the Constitution has been broken. If that is not a crime as a matter of law, it is time to make it a federal felony—a serious one, akin to treason, which it is.

[Brett Bellmore]

I'm not entirely sure of the total of what you imagine "Trump did", but if simply lying was enough to violate that oath, we've got a rather remarkable number of oath breaking office holders on hand.

[Stephen Lathrop]

Bellmore, it is not about punishing lies. It is about punishing oath breaking. Some lies break oaths taken specifically to support and defend the Constitution. Most don't.

[Brett Bellmore]

Still wildly over-inclusive. You'd be going after every legislator who voted for a law they were already on notice was unconstitutional.

[Stephen Lathrop]

That might be a fair objection. I suppose the fact that congress people are legitimately lawmakers ought to carry counter-weight.

Also, what does, "voted for a law they were already on notice was unconstitutional," mean? I don't think of the oath as a promise not to differ with the Supreme Court. Its findings are properly styled, "opinions." Sovereign decrees are another matter.

I think the Court recognizes that difference in cases where it invokes the political questions doctrine, and refuses to decide. That is not the Court saying it does not want to decide between the Ds and the Rs. It is the Court saying properly that it is powerless to meddle with fundamental questions about American constitutionalism which have previously been resolved by sovereign decrees. Where the Constitution is clear and unambiguous, there is nothing for the Supreme Court to decide. When an election outcome is final, there is nothing for the Supreme Court to decide. When an officer is impeached and removed, there is nothing for the Supreme Court to decide.

I think we are looking at another of the many kinds of problems that become simpler to understand if you assume a continuously active joint popular sovereign resides at the apex of American constitutionalism—and I think that remains true no matter how inactive or unresponsive that sovereign seems at times to be.

The alternative is reliance on a notion of pretend sovereignty embodied in government, which is bound to spread confusion. It is also a notion too likely to encourage drift toward judicial supremacy.

[David Nieporent]

You've already been told you don't understand the political question doctrine; you don't need to prove it over and over again.

[Brett Bellmore]

Sure, some of the Presidents in the 1800's had administrations that were real soap operas.

In fact, boring Presidents, while not unknown, are rather the exception than the rule.

[Magister]

A president could be boring for an unremarkable personal life, for a significant lack of charisma, for failure to implement any significant policy, or for serving at a time with little controversy (has that ever really happened?).

Most boring president would probably be William Henry Harrison; two hour inauguration speech in bad weather and dying soon after.

[MyWag13]

More desperation from Blackman.

Insurrection, Disqualification, and the Presidency

28 Pages Posted: 8 May 2023
John Vlahoplus

Date Written: April 9, 2023
[snip]
Even before the Fourteenth Amendment, the House Committee on Foreign Affairs had determined in 1834 that the President is subject to the Foreign Emoluments Clause of the Constitution of 1788, which applies to persons

“holding any office of Profit or Trust under” the United States.

[snip]
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4440157

[Bruce Hayden]

You appear not to have read the post. You assume the question that the author has been denying for years, that someone holding an office under the United States is an officer of the United States. The Presidency, vice presidency, as well as Senate and House seats are offices under the US Constitution. Their position is that “Officers”, principal and inferior, are appointed, while the Presidency, vice Presidency, and Senate and House seats, are elected. My view is that there is just too much evidence within the four corners of the Constitution to ignore their view.

[Dan Schiavetta]

United States v. Georgia, 546 U.S. 151 (decided January 10, 2006): protections of ADA extend to those in state prison (prisoner could not get proper medical care or proper mobility because of lack of ramps, space to move his wheelchair, or accessible toilets)

United States v. Philbrick, 120 U.S. 52 (decided January 10, 1887): Navy carpenter entitled to discretionary living allowances; 1835 statute prohibiting such allowances (and setting a fixed schedule) had been repealed in 1866 without any replacement language, so prior practice was permitted

Owens v. Okure, 488 U.S. 235 (decided January 10, 1989): §1983 claim (beaten by police) subject to state’s residual 3-year statute of limitations as opposed to state’s 1-year statute for intentional torts such as assault

Gonzalez v. Thaler, 565 U.S. 134 (decided January 10, 2012): appeal of conviction under Antiterrorism and Effective Death Penalty Act of 1996 did not require certificate as to which Constitutional violations are alleged; one-year habeas statute of limitations began to run when deadline for seeking cert. in highest state court expired (contention on habeas was that 10-year delay between indictment and trial violated Sixth Amendment speedy trial requirement; Court holds that habeas is time-barred, which is ironic)

Goldberg v. Sweet, 488 U.S. 252 (decided January 10, 1989): Illinois tax on calls only from or to in-state addresses did not violate Dormant Commerce Clause (in effect overruled by Comptroller of Treasury of Maryland v. Wynne, 2015, and by the march of technology)

[Magister]

Thanks for these; sorry they get buried under other posts with another disruption in Today in Supreme Court History.

[SRG2]

Professor A: the presidency is an office, ergo, the president is an officer.
Professor B: but what if the president under discussion is Trump?
Professor C: why then, the case is altered.

[Dan Schiavetta]

yes

[Rev. Arthur L. Kirkland]

It appears not one of these fringe right-wing law professors wishes to address the remarkable legal developments that dominate the current news.

What a bunch of paltry, partisan cowards.

(The proprietor is no doubt teeing up another flurry of diversion chaff -- perhaps some transgender sorority drama, or a reported decision that enables him to publish a racial slur with plausible deniability, or some whining about how our strongest research and teaching institutions are insufficiently hospitable to bigotry and superstition for his taste.)

Carry on, clingers . . . so far as stale, ugly conservative thinking could carry anyone in modern, improving-against-your-wishes America.

[David Nieporent]

Hey, stupid troll: this post is addressing the remarkable legal developments that dominate the current news.

[Ike B.]

In fairness to Arthur, this one's a few weeks old, now, and it'll be another month until oral arguments.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy's fan don't seem to want this blog's conspicuous avoidance of the day's most prominent, important, and interesting legal issue(s) to be mentioned or assessed.

Or the obvious pattern -- Kozinski, Eastman, Trump, Clark, etc.

[Ike B.]

You won't get an argument from me. It's actually pretty fascinating that of all the ways to talk about even this one aspect of the latest Trump-related legal developments, even this one Constitutional question in particular, the bit that Blackman is focused on is the most loser-ish of loser takes.

[David Nieporent]

Whether DJT is disqualified from the presidency is the day's most prominent, important, and interesting legal issue.

[Rev. Arthur L. Kirkland]

That may be the month's, or season's, issue.

But taking the day is the 'my client, when he was president, could have shot a random citizen in cold blood from his motorcade or sent a team of military killers to murder political rivals, and unqualified presidential immunity would have shielded him from prosecution unless he had been impeached and convicted' display.

Or maybe, but probably not, the 'is the former president going to commandeer a courtroom during "closing arguments'" ' drama. That one is quite timely, but mostly sideshow.

[David Nieporent]

That's not a legal issue; that's just courtroom humor. Trump's immunity position is going to lose 3-0 at the D.C. Circuit, 11-0 if it goes en banc, and 9-0 if SCOTUS grants cert. (I don't anticipate either of the last two happening). It doesn't even purport to be law.

On the other hand, whether Trump is or can be disqualified under A14S3 is an actual, active legal issue where the outcome is uncertain.

[Jason Cavanaugh]

Thomas is still on the court, David.

If they grant cert (which they have no fucking business doing), the ruling will be 8-1. Thomas has likely already written his dissent with the help of his wife.

[David Nieporent]

Do you remember all the litigation over the 2020 election, and how many times Thomas voted for Trump's insane positions? Oh yeah: none. He is not voting that the president can assassinate rivals with impunity.

[Life of Brian]

my client, when he was president, could have shot a random citizen in cold blood from his motorcade

Has your ocean-calming, planet-healing spiritual leader authorized you to challenge this position, Artie? As I mentioned last week, the apparent current status quo is that a president need only subjectively find an undesirable individual to be a “direct threat to U.S. interests” to justify unilaterally taking them out.

But if our super-duper-enlightened consciences have suddenly realized there's no immunity for such things, good to know. There's no statute of limitations on murder last I checked.

[Life of Brian]

In fairness to Arthur

You must be new here.

[Spencer]

I suggest that you search for "officer of the united states" on newspapers.com. Your Louisville Journal article appears, as do many others.