Introduction
The Civil War and Reconstruction were the second American Revolution. 1 They ended slavery, preserved the Union, remade the Constitution, 2 and “radically transformed . . . the distribution and exercise of political power in the United States.” 3 Section 3 of the Fourteenth Amendment played an important role in that transformation by disqualifying rebels from holding important positions in the post-war state and federal governments. 4 Section 3 provides in part that anyone who takes an oath as an officer of the United States to support its Constitution but engages in rebellion or insurrection against it may not hold any civil or military office under it until Congress removes the disability by a two-thirds vote of each House.
The insurrection of January 6, 2021, and the coming presidential election raise two pressing constitutional questions. For purposes of Section 3, is the President an officer of the United States, and is the Presidency an office under the United States?
This Article makes the case that the President is an officer of, and holds an office under, the United States for purposes of Section 3. It does not canvass counterarguments or counter-authorities but seeks to contribute to the debate over Section 3's reach by setting out a broad case for the provision's application to Presidents and the Presidency. 5 Part I summarizes the background, drafting history, and final text of Section 3. Part II digresses to discuss one interpretation of the relevant terms in the Constitution of 1788. Parts III and IV make the case that the President is an officer of, and holds an office under, the United States for purposes of Section 3. Part V extends the case for those propositions with additional authorities showing the essential harmony of the two terms.
What constitutes engaging in rebellion or insurrection is a separate question. Regarding the Confederate rebellion, however, Attorney General Stanbery opined that “when a person has, by speech or by writing, incited others to engage in rebellion, he must come under the disqualification.” 6 President Johnson and his Cabinet approved that interpretation, 7 and Johnson directed officers commanding the Southern military districts to follow it. 8 Newspapers and other publications reported the foregoing broadly. 9
I. Section 3: Background, Drafting History, and Final Text
Congress sought to break the political power of rebels and their supporters during and after the Civil War using statutes that disenfranchised them and excluded them from positions in the federal and post-war provisional state governments. 10 Statutes could be repealed, however, so congressional Republicans sought more secure protection against resurgent rebel power through the Fourteenth Amendment. 11
An early version of Section 3 would have disenfranchised through mid-1870 anyone who had given aid and comfort to the rebellion. 12 A later one shifted gears to bar from specified state and federal positions certain officials who had violated their oath to support the Constitution. 13 The exclusion would ensure the election of “loyal men” in what would otherwise be a losing political battle against unreconstructed rebels. 14 President Johnson and “his Southern friends” pushed back with a proposal for Reconstruction without exclusion, which incensed Northerners. 15
Congressional Republicans prevailed. They limited rebel power over the franchise and government positions through Sections 2 and 3 of the Fourteenth Amendment. 16 Section 3 has the following broad and exclusionary terms:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. 17
Unpacked, the provision has three principal clauses. The first (the “Officials Clause”) defines which officials are potentially subject to disqualification—specified federal and state legislators and officers who took an oath to support the Constitution. 18 The second defines the offenses triggering disqualification—engaging in insurrection or rebellion or giving aid or comfort to enemies of the United States. 19 The third (the “Positions Clause”) defines the positions prohibited to faithless officials. 20
Section 3's text is not limited to the Confederate rebellion. 21 It is broad enough to reach offenses in earlier years, such as any committed in the Mexican-American War. 22 It is also broad enough to reach offenses in later years, 23 such as those committed on January 6.
II. A Digression: The Constitution of 1788
Professors Josh Blackman and Seth Barrett Tillman have closely read the offices and officers language in the Constitution of 1788. They conclude that within that document the term “Officers of the United States” refers “to appointed positions in the Executive and Judicial Branches,” and the term “Office . . . under the United States” refers to those positions plus “non-apex appointed positions in the Legislative Branch.” 24 Under their reading, the terms exclude elected officials and elective positions. 25 The President is not an officer of, and does not hold an office under, the United States. After all, for example, Article II Section 3 provides that the President “shall commission all the Officers of the United States,” but Presidents do not commission themselves. 26
This Article takes no position on whether Professors Blackman and Tillman correctly interpret the 1788 Constitution. Instead, it addresses the use of those terms after 1788 including proximate to the ratification of the Fourteenth Amendment in 1868, a time of Reconstruction that differed radically from the original Founding. As the Fixed-Meaning Canon provides, “[w]ords must be given the meaning they had when the text was adopted.” 27 And what the words of a legal text “convey, in their context, is what the text means.” 28 This Article makes the case that in the context of the Civil War and Reconstruction, the Section 3 terms include elected officials and elective positions generally, and the President and Presidency specifically.
III. Office Under the United States
The case for including the Presidency as an office under the United States has six parts: specific contemporaneous references to the Presidency in the legislative history of Section 3, in ordinary usage, and in related federal statutes; general references to elective “offices under;” and contemporaneous executive and judicial interpretations.
A. Specific References in the Legislative History of Section 3
Members of Congress referred to both the Presidency and presidential election in debating the proposed Section 3. Representative Stevens, leader of the Radical Republicans in the House, 29 asserted that “as soon as it becomes a law, Congress at the next session will legislate to carry it out both in reference to the presidential and all other elections as we have a right to do.” 30
Senator Johnson suggested that the text did not go far enough because it allowed election to the Presidency and Vice Presidency. 31 He read the named exclusion of Senators and Representatives to imply that Section 3 did not exclude those executive positions. 32 Senator Morrill corrected him by calling his attention to the words “or hold any office, civil or military, under the United States.” 33 Senator Johnson acknowledged his mistake, recognized that the named exclusions had “misled” him, and concluded that there was “no doubt” that he had been wrong. 34
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. 35 The Committee's view does not control the interpretation of the Constitution of 1788, but it does support the case that nineteenth century usage included the Presidency.
B. Specific References in Ordinary Usage
1. Pre-Ratification
American newspapers kept the public aware of the status and implications of Section 3 and of removing its disabilities. Even before ratification, Americans recognized that the proposed amendment would bar holding the Presidency, while President Johnson's watered-down counterproposal would not.
An 1866 article noted that an important feature of the proposed Fourteenth Amendment was “the disqualification of all noted rebels from holding positions of trust and profit under the Government.” 36 It explained that Democrats opposed the proposal, blaming the North equally for the war and believing “that a rebel is as worthy of honor as a Union soldier; that Robert E. Lee is as eligible to the Presidency as Lieut. General Grant.” 37
An 1867 article attacked President Johnson's watered-down counterproposal because it
imposes no disabilities, political or otherwise, upon the leading men of the rebellion, but leaves them, as they were prior to their treason, eligible to any and all offices under the Federal government. Reconstruction upon this basis would render Jefferson Davis eligible to the Presidency of the United States . . . To such reconstruction the loyal North can never assent. There is something revolting in the very thought. 38
2. Post-Ratification
After ratification, rebels sought amnesties to remove Section 3's disabilities. 39 American newspapers regularly reported that amnesty would restore eligibility to the Presidency, often with outrage and predictions of resurgent rebel power.
An 1871 article asserted that “Were the demands of the amnesty shriekers complied with, Jeff Davis would be elligible [sic] to the Presidency, and would be the most available of all Democratic candidates.” 40 Another asked rhetorically whether it was time “to depopulate Arlington of its sixteen thousand buried Union heroes, and make Jeff. Davis and John C. Breckinridge eligible to the Presidency of the United States?” 41 Yet another took the opposite tack, proposing “a universal amnesty, as provided in the fourteenth amendment, such an amnesty as will make even Jeff Davis eligible again to the Presidency,” predicting that the amnesty would bring “responsible white classes of the South” back into the national fold and undercut the appeal of the Ku Klux Klan. 42
In 1872 liberal Republicans split from the party, pushed for a universal amnesty, and nominated Horace Greeley for President in their Cincinnati convention. Mainstream Republicans partially relented, agreeing to remove the disabilities for all but the most senior rebels in the Amnesty Act of 1872. 43 The Chicago Tribune crowed that the liberals had forced the party to accept the amnesty, making many rebels “as eligible to the Presidency and to the United States Senate as General Logan or General Butler.” 44
In a later mainstream Republican convention speech reported in the Philadelphia Inquirer, Indiana Senator Morton attacked the liberals for risking the party's election chances over Davis's exclusion:
One of the main things talked about at Cincinnati was universal amnesty: that the disabilities of Davis and Tombs might be removed that they might get into power.
The Republican party has not granted universal amnesty, but general amnesty. Do you want to overthrow the Republican party because it will not make Jeff Davis eligible to the Presidency of the United States? (Cries of “No!”) 45
In 1876, with Republican power fading, Democrats proposed a universal amnesty. 46 As newspapers reported, the bill was drafted and pushed “so ostentatiously to make Davis eligible to the Presidency” that it was “practically a bill for that purpose.” 47 In response, Republican Representative Blaine sought an amendment to impose one exception—for Jefferson Davis. 48
Blaine's supporters rallied to prevent Davis’ eligibility. One paper asserted that “[t]he only justification that Mr. Blaine requires for his amendment is the monstrous anomaly of rendering the Confederate president eligible to the presidency of the United States.” 49 Another itched for battle, writing that “[i]f the Confederates cannot restrain themselves from letting loose a hell of Southern fury because somebody objects to making Jeff Davis eligible to the Presidency, it will be best to give them a chance so that all men may know just what sort of fellows they are.” 50 Yet another criticized the inconsistency of making Davis “eligible for the Presidency, while [naturalized] patriots like Carl Schurz, who have been true to their adopted country, are debarred by the Constitution.” 51
Democrats reacted with outrage 52 and defeated the entire proposal. 53 As one paper reported, Democrats “stood up and said unless Jeff Davis shall be made eligible to the presidency, we will have no further amnesty.” 54 The debate continued in later years, 55 and Congress did not provide a universal amnesty until 1898, 56 nine years after Davis's death. Congress relieved him posthumously in 1978. 57
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. 58 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. 59 There is no indication that the difference has any significance. On the contrary, Senator Doolittle considered the terms equivalent and insisted that the oath already prevented holding any civil or military office under the United States, making the proposed Section 3 unnecessary as to federal offices. 60 The Supreme Court also considered them equivalent in an 1888 decision interpreting a non-Reconstruction statute. 61
Although the Ironclad Oath was repealed in 1868, Congress substantially restored it in 1884 with similar prefatory language, providing that the oath for persons holding “any office of honor or profit either in the civil, military, or naval service, except the President of the United States, shall be as prescribed in section seventeen hundred and fifty-seven of the Revised Statutes.” 62 That oath, prescribed only two days after the ratification of the Fourteenth Amendment, applied to certain persons “not rendered ineligible to office” by the amendment who hold “any office of honor or trust under the government of the United States.” 63
Section 3 was enacted with the same broad protective purpose as the Ironclad Oath and Section 1757, in the same context of feared rebel power. It uses similar language as those provisions—one of which specifically references the Fourteenth Amendment. Section 3 should be interpreted consistently to treat the Presidency as an office under the United States under the Related-Statutes Canon: “Statutes in pari materia are to be interpreted together, as though they were one law.” 64 Reconstruction statutes and Section 3 were generally interpreted in pari materia. 65
D. Elective Offices Under Generally
The Positions Clause covers in part “any office, civil or military, under the United States, or under any state.” Under the presumption of intra-sentence uniformity and the Presumption of Consistent Usage, 66 “office under” should have the same meaning for both federal and state offices. And after 1788 popular, statutory, and constitutional usage referred to elective offices as offices under the state 67 as well as under “provisional [State] governments,” 68 under the state and federal governments, 69 under “the government of the United States,” 70 under the state constitution, 71 and under the authority of the state, 72 with no indication that those textual variations had any legal significance. Senator Van Winkle apparently saw no such significance during debates over the proposed Section 3. He referred to the provision's application to “an office under the national Government or the State governments.” 73
These uses included elective state executive offices. 74 Together with the presumption of intra-sentence uniformity and the Presumption of Consistent Usage, they support Section 3's application to the elective office of President.
E. Contemporaneous Judicial Interpretations
The North Carolina Supreme Court held in 1869 that the Fourteenth Amendment barred a rebel from holding the elective office of state solicitor. 75 The court gave Section 3's “office under” term the same meaning as “office” simpliciter. After describing the party's pre-war position and Confederate military service, the court noted that he “seeks to be admitted into the office of Solicitor for the State” and held “that he is disqualified from holding office under the 14th Amendment.” 76
A Circuit Court in North Carolina reached the same result in 1871 in a case involving the elective office of sheriff. The defendant was indicted for holding the office in violation of a federal statute applicable to “any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of the Constitution of the United States.” 77 The court directed the jury to find the defendant guilty if they found that, as charged, he had taken an oath to support the Constitution in his pre-war office and had later engaged in rebellion or insurrection. 78
These courts were not alone in treating Section 3's bar as applying to elective offices and offices simpliciter. An 1866 article asserted that in opposing the Fourteenth Amendment “Democrats practically advocate the election of active rebels to office, and the throwing open the halls of Congress to those who have violated the oaths once taken there.” 79 An 1869 article explained that faithless rebels could “only be restored to the right to hold an office of any sort, civil or military, State or national, by a two-thirds vote of each house of Congress.” 80
IV. Officer Of
The Officials Clause of Section 3 applies in part to anyone who has previously taken an oath to support the Constitution “as an officer of the United States . . . or as an executive or judicial officer of any state.” The case for including the President as an officer of the United States has five parts: contemporaneous executive and judicial interpretations; references in ordinary usage and in the Thirty-Ninth Congress, which proposed Section 3; a related federal statute; and legislative history of removing Section 3's disabilities.
A. Contemporaneous Executive Interpretation
In 1867 Attorney General Stanbery considered the Officials Clause when rendering two opinions on federal statutes implementing Section 3 pending its ratification. 81 He began by determining who are executive or judicial officers of any state within the meaning of Section 3. 82 He concluded that the qualifier “executive or judicial” excludes militia officers. 83 He then opined that the term clearly includes all executive “officers as are generally known by the proper description of State officers or officers of a State,” including governors. 84 Stanbery followed the Ordinary-Meaning Canon: “Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.” 85 Stanbery did not recognize any context indicating a technical sense—instead, he opined that the Officials Clause reaches any executive officers “generally known by the proper description of State officers,” including governors.
Stanbery equated holding an office with being an “officer of.” He opined:
that to work disqualification two elements must occur—
First. Holding the designated office, State or federal, accompanied by an official oath to support the Constitution of the United States; and
Second. Engaging in rebellion against the United States, or giving aid or comfort to its enemies. 86
Stanbery further reasoned that the term “officer of the United States” in the Officials Clause is unqualified, comprehensive, and more general than the “executive or judicial”-limited state version and therefore reaches military as well as civil officers. 87 Stanbery used the General-Terms Canon: “General terms are to be given their general meaning.” 88 And as shown in Part IV.C. below, post-1788 usage supports the case that the President was generally known as an officer of the United States in the nineteenth century.
The reason for the comprehensiveness of the federal term is that “the violation of the official oath and the official trust has relation to fealty to the United States,” and federal officers stand “in more direct relation and trust to the United States than the officers of a State.” 89 Of all federal officials, Presidents stand in the most direct relation and trust to the United States given their constitutionally prescribed oath and their obligations to “faithfully execute the Office” and to “take Care that the Laws be faithfully executed.” 90 To allow Presidents but not their appointed subordinates to again take an oath that they have violated would contravene the Presumption Against Ineffectiveness: “A textually permissible interpretation that furthers rather than obstructs the document's purpose should be favored.” 91
The President holds an office, 92 takes an oath to support the Constitution, 93 and is therefore within Attorney General Stanbery's definition of an officer of the United States. The President is the federal analog of a state governor, who Stanbery concluded is clearly an executive officer of a state, and so under the Consistent-Usage Canon the President is an officer of the United States. 94
B. Contemporaneous Judicial Interpretations
Judicial decisions during Reconstruction relied on ordinary meaning and generality of terms just like the Attorney General's opinion. 95 The Florida Supreme Court interpreted Section 3 as incorporated in the state constitution to apply to anyone who holds a public office. It defined an “office” as “a public charge or employment” and an “officer” as “a person commissioned or authorized to perform any public duty.” 96 It opined that “[a]n officer of the State . . . is a person in a public charge or employment, commissioned or authorized to perform any public duty, under an oath to support the Constitution and Government, and to perform the duty faithfully.” 97
The North Carolina Supreme Court reasoned similarly in 1869 when it held that Section 3 applied to a pre-war elected sheriff. 98 The court took no special notice of the word “of” in “officer of.” It interpreted Section 3 to apply to officers simpliciter, asking only “[i]s a Sheriff an officer?” 99
The court equated holding an office with being an officer for purposes of disqualification under Section 3. It listed “the officers in North Carolina who are required to take an oath to support the Constitution,” including the governor, and opined that anyone “who held any of these offices before the rebellion, and then engaged in the rebellion, is prohibited from holding office until relieved by Congress.” 100 The court defined a public office as a right to exercise public employment with its attendant compensation, duties, and obligation to take the oath, 101 which included the elective office of sheriff. 102
A Circuit Court in North Carolina reasoned the same in a case involving a person appointed and then elected constable before the war. 103 The court found that the party was an “officer in the state” holding “an executive office” before the war and thus within Section 3's Officials Clause. 104
Usage in these cases is consistent with uses of “officer of” involving judicial power over governors and Presidents. An 1867 Supreme Court challenge to military Reconstruction asserted that “[i]f the chief executive officer of a State is liable to be controlled by the courts of the State in the discharge of ministerial duties, for much stronger reasons is the chief executive officer of the United States liable to be controlled by this court under the provisions of the Federal Constitution.” 105 A legal journal explained in 1881 that “[th]e writ of mandamus has at various times been prayed for, against every officer of government, both State and national, except the President of the United States, and even he has not escaped wholly . . .” 106 The Georgia Supreme Court opined in 1850 “that for political reasons alone, the remedy by mandamus ought not to be enforced against the chief executive officer of the State.” 107 And the Arkansas Supreme Court similarly concluded in 1839 that “[a]ll the officers of the government, except the President of the United States, and the Executives of the States, are liable to have their acts examined in a court of justice.” 108
C. References in Ordinary Usage and the Thirty-Ninth Congress
The American President has been generally known here and abroad as an officer of the United States since as early as 1794, when the anonymous author Nestor described President Washington as “the first executive officer of the United States.” 109 Other Presidents were routinely called the “chief executive officer of the United States,” including Jefferson, 110 Jackson, 111 Van Buren, 112 Harrison, 113 Polk, 114 Taylor, 115 Fillmore, 116 Buchanan, 117 Lincoln, 118 Johnson, 119 Grant, 120 and Garfield. 121
Britain's Prime Minister described Polk as the “chief executive officer of the United States” during the Oregon boundary negotiations. 122 Johnson used the same term to describe himself during Reconstruction, 123 and an English paper used it to describe him upon his impeachment acquittal. 124 On the eve of the Civil War, Buchanan called himself “the chief executive officer under the Constitution of the United States.” 125 And as candidates, General Fremont and Horace Greeley were attacked as “totally devoid of those stern virtues which the chief executive officer of the United States should possess,” 126 and as “just the kind of material of which the Chief Executive officer of the United States is never made.” 127
Crucially, many of these uses occurred in the context of the President's election, 128 constitutional position, 129 and role in preventing domestic and international violence, 130 preserving the Union, 131 and enforcing the law during Reconstruction. 132 For example, an 1850 article declared that
President Fillmore . . . places himself where the Constitution places him as the Chief Executive officer of the United States, and in that position looks to the interest of the country—of the whole people—as above any consideration connected with a mere party in politics, or any section of the country.” 133
An 1860 article attacked those mulling rebellion and added “that the arch traitor of the gang is the chief executive officer of the United States, by name James Buchanan,” who refuses to acknowledge any authority to employ the armed forces against seceding states, thereby “virtually proclaiming that he would protect his brother traitors in their rebellion.” 134 And a Southern writer questioned in 1869 whether “Gen. Grant will discharge his duties faithfully as the chief executive officer of the United States, or whether he will act as the President of the Republican party” to perpetuate the oppression of the South. 135
These and other period uses, including in the Thirty-Ninth Congress, 136 make the case under contemporaneous executive and judicial interpretations, the Presumption of Consistent Usage, and the Ordinary-Meaning and General-Terms Canons that the President is an officer of the United States for purposes of Section 3. 137 These uses continued into the twentieth century, supporting the case that nineteenth century usage was not anomalous. 138
D. Related Federal Statute
An 1868 federal statute provided that when specified rebel states ratified the Fourteenth Amendment “the officers of each State duly elected and qualified under the constitution thereof shall be inaugurated without delay,” except that no person disabled under the proposed Section 3 and not relieved “shall be deemed eligible to any office in” the state. 139 The statute recognized that elected officers are “officers of” the state and implicitly equated holding an “office in” the state with being an “officer of” the state.
Under the Related-Statutes Canon, the term “officer of” in Section 3 has the same meaning as in that statute. And under the Presumption of Consistent Usage, the term “officer of the United States” in Section 3 includes the President as the holder of an elective office.
E. Petitions for removal of disabilities
Many of those disabled under Section 3 filed petitions for the removal of disabilities. 140 On January 20, 1869, Representative Farnsworth of the Committee on Reconstruction offered a bill to relieve the disabilities of over one hundred petitioners from Alabama, Georgia, Louisiana, Mississippi, North Carolina, and Virginia. 141 Representative Ward resisted granting individual relief and asked whether there was any reason these particular individuals deserved relief. 142 Farnsworth read one petition, from Ira Garrett of Virginia, as representative of the group. The petition, as recorded in the Congressional Globe, read in part:
Remarks.
The following is an accurate statement of the offices held before the war, the acts committed in support of the rebellion, and the present political status of the above named:
Mr. Ira Garrett is seventy-six years of age—was elected clerk of the county court in 1831, and clerk of circuit court, of Albemarle, in 1852 and has continued to act in each court to the present time.
He gave no support to the rebellion other than sympathy, which was carried out by feeding the hungry soldiers, and attending to the wants of the sick.
He accepts the political situation of the country.
He is now a Republican, and indorsed the reconstruction policy of Congress. 143
Neither Ward nor any other member of the House objected that relief was unnecessary because Garrett had held elective rather than appointed offices before the war. Nor did anyone object that the petition treated having held a state office as demonstrating that the petitioner had been an “officer of” the state. Holding an office, even an elective office, made one an “officer of” the state for purposes of the Officials Clause. Under the Presumption of Consistent Usage, holding the office of President of the United States makes one an officer of the United States.
V. Essential Harmony of the Terms
Parts III and IV make the case for the essential harmony of Section 3's two critical terms. Section 3 applies to officers and offices simpliciter, and an officer is simply one who holds an office. 144 This essential harmony appears in other uses that support the case that the President is an officer of, and holds an office under, the United States for purposes of Section 3.
A. Substituted Usage in Legislative History of Section 3
In debates over the proposed Section 3 both Senator Van Winkle and Senator Johnson described having held an “office under” as the predicate for disqualification—substituting having held an “office under” for having been an “officer of” in the Officials Clause. 145 Senator Van Winkle questioned whether Section 3 should apply to anyone who had ever previously taken the oath or only those who had violated the oath during the term of the position for which they had sworn it. “If it is the intention to exclude from these privileges any one who has ever held an office under the national Government or the State governments, then the language of the section is correct as it is . . .” 146 Senator Johnson doubted that any Southern state would ratify the amendment if Section 3 indeed applied to “all who have at any time held any office under the United States” or “under any State.” 147
For these two Senators, holding an “office under” made one an “officer of” for purposes of the Officials Clause. If the Presidency is an “office under” the United States for purposes of Section 3, the President is an “officer of” the United States for the same purposes. 148 Indeed, in Blackman and Tillman's own 1788 taxonomy everyone who holds an executive office under the United States is an officer of the United States. 149
B. Combined Usage
Several authorities consider both the Officials Clause and the Positions Clause together. In United States v. Powell, for example, the court found that an appointed then elected constable was within the Officials Clause, and the elective position of sheriff was within the Positions Clause by simply concluding that the former was an “officer” and the latter an “office.” 150 Interpreting federal statutes enforcing Section 3 before its ratification, Attorney General Stanbery opined that an elected governor was an “officer of” a state and that his position was an “office under” the state's provisional government. 151
This combined usage appears even before Reconstruction. The 1790 Pennsylvania constitution provided that “[t]he Governor, and all other civil officers, under this commonwealth, shall be liable to impeachment for any misdemeanor in office . . .” 152 The elected governor was an officer under the commonwealth, merging “officer” and “office under” into the singular “officer under.” James Madison noted the provision in 1821, 153 and a guide for families and schools cited it as well. 154
That constitution also cautions against reading constitutional text too technically. It describes the governor as an officer, 155 establishes the elective office of governor, 156 and provides that the governor “shall appoint all officers, whose offices are established by this Constitution.” 157 Read closely, the constitution is incoherent—it requires elected governors to appoint themselves. 158 However, common sense and purposive readings should trump technical readings, particularly for constitutions.
C. One Contemporaneous Understanding of the Constitution of 1788 and the Act of August 31, 1852
In 1866 a select committee of the House of Representatives interpreted the officers and offices provisions of the Constitution of 1788 and rejected both the textual analysis that Professors Blackman and Tillman rely on and the conclusions that they draw. The committee dismissed their type of textual analysis as “mere verbal criticism” and asserted that “[n]o method of attaining the Constitution is more unsafe than this one of ‘sticking’ in sharp verbal criticism.” 159 The committee applied a common sense purposive method of interpretation instead.
The committee concluded that members of Congress hold offices under the United States and “that no argument can be based on the different sense of the words ‘of’ and ‘under,’ as used in” the relevant clauses of the Constitution. 160 It reached those conclusions in part by considering the Foreign Emoluments Clause, which bars those who hold offices under the United States from accepting emoluments, titles, and the like from foreign sovereigns. 161 The committee reasoned that members of Congress must hold offices under the United States. Otherwise that clause would not apply to them, and foreign sovereigns could purchase Congress—a result that is “repugnant to all just or safe principles of government.” 162
The select committee's conclusion is consistent with the Foreign Affairs Committee's earlier view that the President is subject to the Foreign Emoluments Clause. 163 It is also consistent with Professor Zephyr Teachout's use of an anti-corruption principle to interpret the Constitution generally and to reach the same conclusion as to elected federal officials. 164
The select committee's conclusions are particularly noteworthy given their context. Representative Blaine had read a letter on the House floor charging Representative Conkling with corruption for, among other things, having received his House pay while also receiving compensation for prosecuting a court martial as an acting federal judge advocate. 165 The House empaneled the committee to review the charges. The committee considered potentially applicable laws including an 1852 statute (the “Act”) that in part forbade anyone holding an “office under the government of the United States” bearing annual compensation of at least two thousand five hundred dollars to “receive compensation for discharging the duty of any other office,” whether they held that other office or not. 166
Conkling argued that the Act could not apply to him because members of Congress do not hold offices under the government of the United States. 167 The committee first considered his defense by reference to the officers and offices terms in the Constitution of 1788. The committee rejected the defense for the reasons stated above, reading the terms “officer of” and “officer under” interchangeably, and the terms “officer ‘of’ the United States” and officer “‘under’ the Government of the United States” interchangeably. 168 The committee viewed the anti-corruption principle as so strong that it put members of Congress at risk under the Act.
As a fallback, the committee concluded that even if members of Congress do not technically hold an office under the government of the United States for purposes of the Constitution of 1788, they nevertheless do for purposes of the Act given its underlying purpose—“the absolutely vital importance of” keeping members “as far as possible from the bad influences of corruption and avarice.” 169 The anti-corruption principle controlled the independent statutory interpretation. 170
Finally, the committee had to determine whether a temporary judge advocate discharges “the duty of any other office.” The committee defined “office” much as Attorney General Stanbery and state courts later would when interpreting Section 3—as “a particular duty, charge, or trust, conferred by public authority, and for a public purpose, with a right usually attached to receive a fixed compensation for such service.” 171 The committee examined the position and concluded that it was not itself an office and that performing its functions did not discharge the duties of any other office. 172 The committee resolved to exonerate Conkling. 173
The committee's report was unanimous and read in its entirety to the House one month after Congress sent the Fourteenth Amendment to the states for ratification. 174 The committee's report does not control the interpretation of the Constitution of 1788, of course. But it does vitiate any claim that the narrow definitions that Professors Blackman and Tillman propose were fixed, generally accepted, or presumptively correct for any purpose at the adoption of the Fourteenth Amendment. 175 And it supports the case for applying a common sense, purposive, ordinary meaning method of interpretation to Section 3. 176
Conclusion
The United States adopted the Reconstruction amendments in a radically different context than it did the Constitution of 1788. Congressional Republicans rightly feared the resurgence of rebel power at the state and federal levels. They tried to prevent that through franchise and exclusion rules, first by statute and then in Sections 2 and 3 of the Fourteenth Amendment.
Section 3 applies to faithless state and federal officers. It bars holding state and federal offices until Congress permits. Its text uses ordinary terms, and the legislative, executive, judicial, interpretive, and popular materials cited above make the case for ascribing ordinary meanings to them. Those materials, along with canons of construction like the Presumption of Consistent Usage, support the provision's application to Presidents and the Presidency just as much as to governors and governorships.
As North Carolina Supreme Court Justice Reade explained in 1869, Section 3's purpose is to ensure “that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again, until relieved by Congress.” 177 This Article makes the case that Section 3's text reaches Presidents and the Presidency and reminds interpreters that “[a] textually permissible interpretation that furthers rather than obstructs the document's purpose should be favored.” 178 One who takes the oath of the office of President of the United States then engages in insurrection or rebellion against it, or gives aid or comfort to its enemies, should not be eligible to take that oath again without permission from Congress.
Thanks to Stephen D. Hibbard for helpful comments on an early draft.