The Volokh Conspiracy
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Professor Mark Graber responds to Blackman & Tillman on the 1868 Louisville Daily Journal
In response to the "new source" described in Josh's recent post (and Tillman's recent amicus brief, and earlier in this short SSRN piece by John Connolly) Professor Mark Graber writes at Balkinization:
Eureka Not: The President is an Officer of the United States Redux, Redux . . .
Mark Graber
A long exhaustive search has finally found an article published within ten years of the framing of the Fourteenth Amendment that declares that the President is not an officer of the United States. Congratulations to Josh Blackman and Seth Barrett Tillman for unearthing the Louisville Daily Journal's series of pieces claiming, contrary to what President Andrew Johnson said about his job description, that Johnson was not an officer of the United States. Of course, the comment was not made in respect to Section Three of the Fourteenth Amendment, but apparently that is a trifle. A source does exist. Eureka.
Maybe not. An historian might ask, how representative is the Louisville Daily Journal and what is the Louisville Daily Journal representative of? With respect to the second question, a little newspaper search revealed that the Louisville Daily Journal was a Democratic party newspaper bitterly opposed to the Fourteenth Amendment, the impeachment of Andrew Jackson, and the possible presidency of radical Republican Senator Benjamin Wade of Ohio, the probable president if Johnson was impeached (unless Senators were not officers of the United States). Before Donald Trump was subject to disqualification, originalists thought that the Republicans who voted for the Fourteenth Amendment were the authoritative source on the original meaning of that text. Now apparently Democrats are the higher authority. I look forward to many changes in the Supreme Court's jurisprudence based on how white supremacists and former rebels described the post-Civil War Amendments (hint, black rule is constitutionally mandatory).
With respect to the first question, I decided to do two random searches. The first was the record of the Andrew Johnson impeachment. The second was American newspapers in 1868 (I used the Newspapers Archives site). For the first, I searched "officers of." For the second, I searched "officers of the United States" (I did a narrower search simply because "officers of," which got 71 hits for the impeachment, would have gotten a few thousand for Newspaper Archives, almost all of which would not have been on point. Indeed, I looked at only the first 200 of the more than five hundred hits I got).
The first finding was Common Sense 15, Blackman/Tillman 0*.
I found six references to the President or Vice President as an officer of the United States in the congressional records of the Johnson impeachment debate and nine references to the President or Vice President as an officer of the United States in the newspaper archives. I should note the 0 is explained by my decision to read only the first 200 hits. A quick check revealed the Louisville Daily Journal stories claiming the president was not an officer of the United States were in the database, just not in the first 200 hits. The asterisk reflects one article that referred to a Democratic paper that claimed the president was not an officer of the United States. Quite possibly the reference was to the Louisville Daily Journal.
I have been deluged with other citations claiming that the President is an officer of the United States. Gerard Magliocca has done amazing work unearthing some of these citations. John Vlahoplus has done yeoman work making many citations public and has sent me many more. James Heilpern and Michael Worthy have a terrific piece on SSRN that geometrically expands the number of commentators and commentary from 1866 to 1868 that treats the president as an officer of the United States for Section 3 purposes. Still, for the purposes of "scientific" accuracy (and my methods were not all that scientific), I decided not to refer to any article or citation that did not turn up in my random survey. If we make the reasonable assumption that persons on both sides of the disqualification argument have been searching for favorable citations and that good tools for doing so are easily accessible, based on the information so far made public my best guess is that you will find more than 25 newspapers that refer to the president as an officer of the United States for every one that does not.
The second finding is that the members of Congress and newspapers that regarded the president as an officer of the United States were overwhelmingly Republican. The members of Congress who claimed the president is an officer of the United States include Representative John Bingham of Ohio, who is often (and wrongly) regarded as the father of the Fourteenth Amendment, Representative James Ashley of Ohio, one of the main authors of the Thirteenth Amendment, Representative James Wilson of Iowa, the head of the House Judiciary Committee, and Senate Oliver Morton of Indiana, a prominent radical. The newspapers include such Republican stalwarts as the National Republican, the Cincinnati Commercial, and the Madison Wisconsin State Journal.
So, what do we know? With respect to Section 3 of the Fourteenth Amendment, there were at the time prominent assertions that former presidents and presidents were covered, and innumerable assertions that Section 3 disqualified anyone who held a federal or state office from holding any federal or state office. There are numerous instances, including a congressional report, where political actors and journals make no distinction, sometimes self-consciously, between "office(r)," "office(r) of," and "office(r) under." There are no instances so far discovered of any person between 1866 and 1868 making a distinction between these phrases and claiming the president for purposes of Section 3 was an "officer," but not an "officer of" or an "officer under." Zero. The only possible instance so far uncovered is of a Democrat, Reverdy Johnson (are we seeing a pattern here of those not wanting Trump to be disqualified), who recanted within approximately 15 seconds.
With respect to the presidency more generally, there are scattered quotations in newspapers that the President is not an officer of the United States. I suspect a few more are lurking. We will immediately learn when they are discovered. No one has found a single quotation in the Congressional Globe from 1866 to 1868 indicating that the president is not an officer of the United States. None exist in 1866 and 1867, but I have not fully surveyed 1868. The newspaper quotations are running 10-1 in favor of the president being an officer on a conservative estimate and, if I count quotations that have turned up in other writings, the ratio is probably more than 20 to 1.
As important, the few scattered quotations indicating that the president is not an officer of the United States are from white supremacist papers eager to foil congressional reconstruction. No one has yet produced a quotation that the president is not an officer of the United States made from 1866 to 1868 by a Republican who favored the 14th Amendment (I'll bet 1-2 exist). So far at least, the only persons claiming the president is not an officer did so as part of an argument that Benjamin Wade should not become president (I would not be surprised to find a reference or two claiming that an impeached Andrew Johnson could still run for president). If Republican proponents of racial equality and free labor are a better guide to the point of the Fourteenth Amendment than Democratic proponents of white supremacy and slavery, the result is no contest, even if scattered dissenting voices appear. The Republicans who drafted, framed and ratified the Fourteenth Amendment, the evidence so far presented demonstrates, were as united in claiming the president was an officer of the United States in general, as they were when claiming that the president was an officer of the United States for the specific purposes of Section 3.
Blackman and Tillman engage in the same cherry-picking when discussing congressional speeches during the Belknap impeachment of 1876. They correctly point out that two members of Congress stated that the president was not an officer of the United States. One of them, George Boutwell, was a member of the Joint Committee on Reconstruction, although a scholar might have pointed out that Boutwell in his autobiography claimed the president was a civil officer of the United States (who has time for historical research?). Having nothing better to do, I did a word search with respect to the Belknap hearings, again typing in "officer of." There were about 100 hits. I looked at the first 50. 15-20 claimed the president was an officer or an officer of the United States (the others had nothing to do with the case). None of the first fifty claimed that the president was not an officer of the United States. Given my suspicion that Blackman and Tillman mined the hearing for every citation in their favor, my inference is that there are probably 15-20 citations in the last fifty that claim the president is an officer of the United States and two citations for the contrary position. Again, in 1876, members of Congress by a probable 10-15 to 1 ratio thought the President was an officer of the United States.
There are lots of searchable texts and newspaper databases out there. Readers are invited to do their own searches. Take a look at Heilpern and Worthy noted above. They came up with an overwhelming number of newspaper assertions that the president was an officer and an officer of the United States for Section 3 purposes. No counterexample.
We might imagine a constitutional provision drafted in 1965 that refers to "football." In 1980, one or two members of Congress use "football" in the European sense. Blackman and Tillman might have you believe that this reference demonstrates that all actual references to "football" in federal or state law must refer to what Americans more commonly call "soccer."
[I have not replicated all of Professor Graber's research myself, but nobody can accuse him of being a late-comer to the interpretation of Section Three. He has been researching an acclaimed book series on "The Forgotten Fourteenth Amendment" for years, before these issues were politically live. I thought our readers might be interested in his thoughts.]
