The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy

All Blackman-Tillman Articles, Presentations, Amicus Briefs, Commentary, and Blog posts on Section 3 and Insurrection

We started thinking about the topic on January 6, 2021, and have been writing since.

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

After the 2020 Presidential Election, we thought that we were done with pressing debates with a litigation-focus about the Constitution's "office"- and "officer"-language. The Emoluments Clauses litigation, which stretched for the entirety of President Trump's four-year term, would be dismissed as moot. And, we could return to our regularly-scheduled scholarly pursuits. But then, January 6 happened. That day, we both immediately realized that Section 3 was on the table. Like the Groundhog Day, or The Godfather Part III, we feared that we would be dragged back into the debate about whether the President was an "Officer of the United States" or held an "Office under the United States." Our fears were well founded. 

We started writing on the topic on January 7, and published our first blog post in the wee hours of January 8. And on January 20, we published our first post arguing that Trump was not an "Officer of the United States" for purposes of Section 3. You'll see that the arguments we raised in that post are generally consistent with the positions we've advanced before the United States Supreme Court and with those advanced by Trump's counsel. 

Over the past three-plus years, we have written a lot about the implications of January 6. Tomorrow, on February 8, 2024, the Supreme Court of the United States will hear oral argument in Trump v. Anderson. In this post, we will provide a compendium of our Section-3-related articles, presentations, briefs, etc. 

Section 3 Law Review Articles

  1. What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?, 2021 University of Illinois Law Review Online 190 (2021) (posted 5/7/21).
  2. Is the President an 'officer of the United States' for Purposes of Section 3 of the Fourteenth Amendment, 15 NYU Journal of Law & Liberty 1 (2021) (posted 12/20/21).
  3. Sweeping and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. 350 (forth. 2024) (posted 9/19/23).

Related Law Review Articles

  1. Offices and Officers of the Constitution, Part I: An Introduction, 61 South Texas Law Review 309 (2021) (posted 8/18/21).
  2. Offices and Officers of the Constitution, Part II: The Four Approaches, 61 South Texas Law Review 321 (2022) (posted 2/1/22).
  3. Offices and Officers of the Constitution: Part III, The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 South Texas Law Review 349 (2023) (posted 5/12/23).
  4. Offices and Officers of the Constitution, Part IV: The 'Office . . . under the United States' Drafting Convention, 62 South Texas Law Review 455 (2023) (posted 5/12/23).

(For those curious, Parts V and VI of our ten-part series are mostly done, though they may change depending on what happens in Trump v. Anderson.)

Presentations

  1. Is Section 3 Self Executing?, Federalist Society Faculty Conference (1/5/23).
  2. Trump, Section 3, and Insurrection, George Mason Federalist Society Chapter (4/22/23).
  3. Will a Plea Bargain Keep Trump Out of the White House?, Opening Arguments Podcast (5/2/23).
  4. Debate on Section 3, Georgetown Federalist Society (10/25/23).
  5. Yes, A Court Found That Trump "Incited An Insurrection" – Now What?, Opening Arguments Podcast (11/23/23). 
  6. Guest on National Constitution Center Podcast to discuss Section 3 Case (1/11/24).
  7. Debate on Section 3 - Josh Blackman & Will Baude, Chicago Federalist Society Chapter (1/17/24).
  8. Trump, Section 3, and Insurrection, Boston College Law School (1/24/24).
  9. Trump, Section 3, and Insurrection, Boston University Federalist Society Chapter (1/25/24).
  10. Trump, Insurrection, and the Ballot, South Texas College of Law Federalist Society (2/1/24).
  11. The Legal Issues Behind the Colorado Ballot Disqualification Case, Heritage Foundation (2/7/24).
  12. Sweeping and Forcing the President into Section 3, 15th Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference, San Diego, California (2/10/24).

Amicus Briefs

  1. Amicus Brief, Colorado Supreme Court (11/27/23).
  2. Motion for leave to participate in oral argument, Colorado Supreme Court (11/27/23).
  3. Amicus Brief, Michigan Court of Appeals (12/6/23).
  4. Amicus Brief, United States Supreme Court (1/9/24).
  5. Motion for leave to participate in oral argument, United States Supreme Court (1/29/24).

Commentary

  1. Only the Feds Could Disqualify Madison Cawthorn and Marjorie Taylor Greene, New York Times (4/20/22).
  2. Seth Barrett Tillman, Not a Panacea: Trump Disqualification and Plea Bargains, Lawfare (9/20/22).
  3. Why the Manhattan DA Trump Case Cannot Be Removed To Federal Court, Lawfare (5/18/23).

Blog Posts

All posts are on the Volokh Conspiracy, unless otherwise indicated.

  1. Can President Trump be Impeached and Removed on the Grounds of Incitement? (1/8/21).
  2. We Should Not Forget The Free Speech Lessons from President Johnson's Impeachment Trial (1/14/21).
  3. Why do different positions in the government receive different types of free speech rights? (1/17/21).
  4. Is the President an "officer of the United States" for purposes of Section 3 of the Fourteenth Amendment? (1/20/21).
  5. A Response to Andrew Hyman on Section Three of the Fourteenth Amendment, Originalism Blog (1/26/21)
  6. Defining a Theory of "Public" and "Private" Offenses for Impeachment (2/3/21).
  7. The First Amendment Arguments in the House of Representatives' Managers' Trial Memorandum (2/4/21).
  8. What Do "Many" of the 140+ Law Professors Think About the First Amendment and Impeachment? (2/6/21).
  9. New Evidence and Arguments About the Scope of the Impeachment Disqualification Clause: A Response to the House of Representatives' Managers' Trial Memorandum (2/7/21).
  10. My work was cited by President Trump's attorneys (2/8/21).
  11. A Reply to the House of Representatives' Managers' Reply Memorandum (2/11/21).
  12. If Donald Trump is Convicted of Violating 18 U.S.C. § 2383, Will He Be Disqualified From Serving As President? (2/18/21).
  13. New Article: What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383? (4/30/21).
  14. New Article in NYUJLL: Is the President an "Officer of the United States" for Purposes of Section 3 of the Fourteenth Amendment? (12/13/21).
  15. Garland's Choice: Should He Indict Donald Trump for Inciting an Insurrection? (12/23/21).
  16. Section 3 Lawsuit Filed Against Candidacy of Rep. Madison Cawthorn (1/11/21).
  17. Don't Be So Certain About Trump And Section 3 (2/2/22).
  18. A Reply to Mark Graber's "Legislative Primacy and the Fourteenth Amendment, Balkinization (4/22/2022). 
  19. No, 18 U.S.C. § 2071 Cannot Disqualify Trump From The Presidency (8/8/22).
  20. To Indict Or Not To Indict? That Is the Question. (8/31/22).
  21. New In Lawfare: "Why the Manhattan DA's Trump Case Cannot Be Removed to Federal Court" (5/18/23).
  22. New York District Attorney Bragg Argues That President Trump Was Not An "Officer Of The United States" (5/31/23).
  23. Trump's Lawyers Cite, And Disagree with Blackman & Tillman On Whether The President Is Or Is Not An "Officer of the United States" (6/16/23).
  24. Smith's Indictment of Trump In Florida Suggest He Won't Bring An Insurrection Charge in D.C. (6/16/23).
  25. SDNY "Believe[s]" In Dictum That President An "Officer of the United States" for purposes of Federal Officer Removal Statute (7/19/23).
  26. What The Trump Indictment Left Out (8/1/23).
  27. New Article: Sweeping and Forcing the President into Section 3 (9/12/23).
  28. Professor Calabresi in WSJ: President Trump Can Not Be Disqualified (9/12/23).
  29. Professor Akhil Amar, On His Podcast, Responds to Attorney General Mukasey and the Tillman-Blackman Position (9/14/23).
  30. Updated Version of "Sweeping and Forcing the President into Section 3" (10/22/23).
  31. Colorado District Court "Holds that Section Three of the Fourteenth Amendment Does Not Apply to Trump" (11/17/23).
  32. Moving The Section 3 Officer Argument From "Off The Wall" to "On The Wall" (11/21/23).
  33. Griswold v. Anderson: The Section 3 Case Before The Colorado Supreme Court (12/7/23).
  34. Jefferson Davis: President of the United States? (12/8/23).
  35. Blackman & Tillman, On The Wall (12/21/23).
  36. Natelson on the Offices and Officers of the Constitution in 1788 and 1868 (12/29/23).
  37. A New, Rushed, Flawed Article In The Section 3 Debate (1/4/24).
  38. Amicus Brief Filed in Trump v. Griswold On Behalf of Professor Seth Barrett Tillman (1/9/24).
  39. Louisville Daily Journal (April 1868): The President is not an "Officer of the United States" (1/10/24).
  40. We're In The Section 3 Endgame Now (1/11/24).
  41. Overview of Amicus Briefs Supporting Petitioner in Trump v. Griswold (1/19/24).
  42. A Short Response to Roger Parloff and Others (1/24/24).
  43. Professor Akhil Reed Amar and Professor Vikram Amar Retreat From Their "Global" Rule for the "Offices" and "Officers" of the Constitution (1/27/24).
  44. In Trump v. Anderson, the Respondents' Theory Would Render Unconstitutional Every Speaker and President Pro Tempore Since 1789, as well President Grant's VP and Presidential Candidate George McGovern (2/4/24).
  45. Tillman in the Times: "A Legal Outsider, an Offbeat Theory and the Fate of the 2024 Election" (2/7/24).
  46. Video: Heritage Panel on Section 3 Case (2/7/24).
  47. A Reply to Peter Keisler and Richard Bernstein, and Michael Luttig, on Section 3 (2/7/24).

Over the past three years, what is above reflects our primary Section-3-related output. It is possible that we missed a few items—especially during the hurly-burly of rapid developments in the last few months. Of course, during this time period, we have also published on topics wholly unrelated to Section 3 and the Constitution's "office"- and "officer"-language, all the while attending to our teaching and other academic and professional duties.