A User’s Guide to Trump v. Anderson, Part One: Why the U.S. Supreme Court Might Resolve the Case Even Though Its Decision Probably Won’t Affect the Colorado Presidential Primary Election Ballot

Marty Lederman

Early in 2021, overwhelming majorities of both the U.S. House of Representatives (by a vote of 232-197) and the Senate (57-43) determined that Donald Trump engaged in an insurrection on January 6, 2021; that such conduct amounted to “high crimes and misdemeanors”; that Trump’s conduct disqualified him from holding any office under the United States by virtue of Section 3 of the Fourteenth Amendment (which the Article of Impeachment expressly cited); and that Trump accordingly “warrants … disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” 

Of course, that unprecedented bicameral congressional determination did not have any formal legal effect because “convict[ion]” under the Impeachment Clause of Article I, Section 3 requires “the Concurrence of two thirds of the [Senate] Members present,” and the Senate fell short of the necessary 67-vote mark.  Had ten more Senators voted to convict, then the constitutional system would have operated as it was designed, Trump wouldn’t be running for President, and there’d be no Colorado case.

Unfortunately, however, 43 Republican Senators voted not to convict Trump despite his indefensible efforts to undo the election results.  And although a grand jury has charged Trump with several criminal offenses related to those efforts, that indictment does not include an alleged violation of the criminal “insurrection” statute, 18 U.S.C. § 2383, which provides that “[w]hoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto … shall be incapable of holding any office under the United States.”  (Indeed, although DOJ has charged hundreds of individuals in connection with the January 6 attack on the Capitol—some even with “seditious conspiracy” under 18 U.S.C. § 2384—it has not (yet) charged anyone with involvement in an insurrection under section 2383.) 

Despite the fact that neither Congress nor DOJ has yet taken steps sufficient to disqualify Trump from holding federal office, he might nevertheless be constitutionally ineligible to hold any future state or federal office, including the presidency, by virtue of Section 3 of the Fourteenth Amendment, which provides: 

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. 

Being Blunt about Blount

Mark Graber

Scholars and commentators opposed to disqualifying former President Trump from all future officeholding make basic historical errors and engage in remarkably selective citation when arguing that the failed impeachment of William Blount in 1798-99 is a vital precedent for their fanciful claim that presidents are not officers of the United States.  The Annals of Congress provides far more evidence that Trump is among the persons disqualified from future officeholding than for a bizarre presidential immunity from the consequences of engaging in an insurrection.  Of the four lawyers who argued before the Senate during the Blount impeachment trial, two argued that the president was an officer of the United States, another insisted that the President was an officer under the United States for purposes of most clauses.  Only one gave a speech that might be reasonably interpreted as indicating the president was not a civil officer.  That speech also provides evidence that the attorney thought presidents were civil officers of the United States.   Three of the lawyers who argued before the Senate agreed that "officer," "officer of the United States," and "officer under the United States" had no consistent meaning, that different persons might meet this description under different constitutional provisions.  The history suggests the meaning of "officer of the United States" and "officer under the United States" in Section Three of the Fourteenth Amendment must be determined by whether persons in 1866 had good reasons to exempt the president and the presidency from constitutional disqualification and not on some imagined universal understanding of "officer" that pervades all constitutional provisions.

A User’s Guide to Trump v. Anderson: Introduction

Marty Lederman

A week from Thursday, on February 8, the Supreme Court will hear argument in No. 23-179, Trump v. Anderson, et al.  The Court is reviewing a 4-3 decision by the Colorado Supreme Court, which held that Colorado law prohibits the Colorado Secretary of State from including Donald Trump’s name on the ballot in the Republican presidential primary election.  That holding under state law was, in turn, predicated on the state court’s determination that Section 3 of the Fourteenth Amendment to the U.S. Constitution prohibits Trump from “holding” the office for which he is running, namely, the presidency, because he “engaged” in an “insurrection” at the U.S. Capitol on January 6, 2021.  (Only the four Justices in the majority opined on this “substantive” question of Trump’s eligibility to hold office; the three dissenters on the Colorado Supreme Court would have refused for other reasons to require the Secretary of State to exclude Trump’s name from the primary ballot, regardless of whether he’s eligible to hold the office.) 

Trump has filed his opening brief, as has the Colorado Republican State Central Committee (which I’ll refer to as the Colorado Republican Party or CRSCC for short), which is nominally a respondent in the case even though it’s urging the same result as Trump.  (The Court has not yet ruled on the CRSCC’s separate cert. petition, but the CRSCC still has the right to file a reply brief in the Trump case.)  Many amici have also filed briefs, most in support of Trump and a few others in support of neither party.  On Friday, the plaintiffs in the Colorado case filed their brief.  Amici in support of the plaintiffs must file by this coming Wednesday (January 31), and it appears that the Colorado Secretary of State—another respondent—will file a brief defending the decision of its supreme court. 

The Question Presented on which the Court granted certiorari is deceptively simple:  “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?”  But behind that discrete question lies a vast array of distinct legal questions, including whether the case is in any realistic sense about the Colorado “2024 presidential primary ballot”—which already includes Trump’s name—and potentially the most momentous question of all, namely, whether the Fourteenth Amendment disqualifies Donald Trump from holding the office of President again by virtue of his actions on January 6, 2021. 

There’s a good deal of public confusion and uncertainty about the issues the case raises, and an extraordinary degree of disagreement, among observers of many political stripes, about what the U.S. Supreme Court is likely to do; what the Court should do; and what the implications would be of the various possible dispositions.  I’ll try to untangle and assess the many legal and strategic questions in the case (and those not in the case) in a series of posts.

Charles Fried

Mark Tushnet

 One thing the obituaries and tributes to Charles Fried don't pick up on (understandably, I think) is that he was a Harvard loyalist. On every issue I can think of (with one exception), in the back of Charles's mind was the thought, "If Harvard did it, it has to be right." (The exception is that he had an intense dislike for Drew Gilpin Faust, for reasons that I never quite understood though I had the sense that it arose from some personal interactions.) My view is that Harvard loyalism played a large part in Charles's drift away from conservatism, specifically because Barack Obama was highly successful within Harvard Law School. (The president of the Harvard Law Review just had to be better than anyone else on the political scene.) The breach in the dike was of course widened by lots of other things--as Charles said, conversations with his children, the policy and political positions taken by the Republican party, etc.

(In the summer of 2022 I sent Charles a draft chapter of my now-forthcoming book "Who Am I to Judge?," in which I invoke, with some important qualifications, Charles's analysis of what lawyers know (in The Artificial Reason of the Law), and he gave some helpful comments--and said that the chapter was written so engagingly that he felt compelled to read the entire manuscript.)

John Marshall Harlan on Section Three of the Fourteenth Amendment

Gerard N. Magliocca

How did John Marshall Harlan understand Section Three? And was his view public knowledge during Reconstruction? These were both unanswered questions until now.

I have found a letter that Harlan wrote on December 1, 1868 in support of the Section Three amnesty petition of Philip Lee of Kentucky. The letter was reprinted in full in the Congressional Globe in February 1869. The citation is Cong. Globe, 40th Cong., 3rd Sess. 1263 (1869). Here is a link.   

In the letter, Harlan explains that Lee was elected in August 1868 as a state attorney and now holds that position. Lee was a state official before the Civil War, swore an oath to support the Constitution in those positions, but then served in the Confederate Army as a lieutenant colonel. 

Harlan says that Lee's "case is, therefore, embraced by the Fourteenth Amendment of the Federal Constitution" unless the positions that he held before the war were not deemed offices under state law. As a result, Lee "desires the passage of an act of Congress which will enable him to hold and exercise the duties of the office to which he was recently elected, without any question as to his right to do so under the Fourteenth Amendment." The rest of the letter praises Lee and says that he deserves a waiver. Lee did get amnesty from Congress, though not until December 1869.

What is the most important takeaway here? The answer is that John Marshall Harlan must have thought that Section Three applied of its own force. No Act of Congress enforced Section Three in Kentucky until 1870. And Harlan contemplated that a state court would (in the absence of congressional amnesty) have to determine whether Lee's positions prior to the Civil War were offices under state law and thus also under Section Three. This issue was similar to what was being adjudicated in North Carolina and Louisiana in the period immediately following the Fourteenth Amendment's ratification.

My Nervousness About the “Plagiarism” Flap

Mark Tushnet

Am I a plagiarist? I’m confident that I’ve never consciously appropriated any ideas from someone else without attribution (although there are surely some borderline cases where I thought about someone else’s idea, reworked it into something different, and presented that different idea without laying out the thought process and identifying the author of the other idea). I’m equally confident that I’ve never consciously appropriated another author’s words without attribution (although again I’m pretty sure that you can find places where, as a result of a cognitive or typographical error the printed version of my work gives the wrong page number for the original words).

Factual Errors in the Amicus Brief of the ex-Attorneys General

Gerard N. Magliocca

I want to flag an essay by Michael Stern pointing out two factual errors in the amicus brief filed by Attorney General Meese, Attorney General Mukasey, and Attorney General Barr. In its analysis on whether the President is an "officer of the United States," the amicus brief says on Page 10: "[t]hat phrase was construed during the impeachment trial of U.S. Senator William Bount in 1799 by Senator Bayard, one of Blount's defenders."

Stern correctly points that this sentence is twice wrong. First, there was no Senator Bayard. It was Representative Bayard. Second. Bayard was not defending Blount. He was one of the House managers prosecuting Blount. It would be as if I described the Scopes Trial by saying that "Judge Darrow attacked evolution by saying . . ."

I would advise treating the Meese, Mukasey, and Barr brief with caution. I do not have the time to check all of its cites to see what other errors there may be.

Talking Frogs, Presidential Disqualifications, and other Unprecedented Choices.

Mark Graber

Several talking frogs hop into a voting precinct and ask for a ballot. The frogs produce documentation demonstrating that they were born human beings, were cursed by an evil genie, and will be transformed back into human form only when kissed by a contented first year law student (hard to find).  The documentation demonstrates the frogs meet age and residency requirements.  One election worker says, “We have never allowed a talking frog to vote before.”  Another responds, “We have never not allowed a talking frog not to vote before.”

Donald Trump is our national talking frog.  He presents unique constitutional problems by poses unique and unprecedented challenges to American constitutional democracy.  Many people truthfully say, “we have never disqualified a presidential candidate before under Section Three of the Fourteenth Amendment.”  The proper response is, “we have never not disqualified under Section Three of the Fourteenth Amendment a candidate who egged on a mob to violently attack Congress.”  Any decision that states, the Supreme Court, Congress, and voters make is and will be unprecedented.  Arguments that we should do what we have always done with candidates such as Trump are for this reason unavailing. All Americans can do is choose the option they believe constitutionally best.

Respecting Military Reconstruction

Gerard N. Magliocca

The Trump case will probably force the Court to confront the meaning of Military Reconstruction. Section Three was the only part of the Fourteenth Amendment that was incorporated into the Military Reconstruction Acts. Section Three was also interpreted by the Attorney General in 1867 and implemented by Union Army commanders in the South. After ratification in 1868, the Army enforced Section Three in the states that remained unreconstructed.

The briefs in support of Donald Trump ignore or downplay these facts. For example, many of them claim that Section Three cannot be enforced without an Act of Congress. But Section Three was enforced in Virginia by the Army before any Act of Congress so provided. Some of the briefs also claim that Section Three cannot be applied to candidates. But in Virginia and Georgia military commanders did hold that Section Three rendered people ineligible candidates for state legislative elections. (The Amir brief makes this point with respect to Virginia.)

Why are these precedents being disregarded? One possibility is that the Dunning school of Reconstruction history taught people that Military Reconstruction was tyrannical. Thus, all of the precedents from that period are unreliable. Even if you don't take that view, you still might think that military actions are not the equivalent of court actions. Army decisions were lawless and court actions were lawful.

But Section Three belies that second argument. The text emphatically asserts the equivalence of the constitutional oath taken by civil and military officials. The Constitution is equally binding on both. And in many ways, Union Army commanders were far more faithful to the Fourteenth Amendment than civil officials. Ron Chernow's biography of Grant makes this point over and over again. The generals saw the carnage of the Civil War up close and were determined that the dead shall not have died in vain. 

The Presidency is an Office under Section Three

Gerard N. Magliocca

Donald Trump's opening brief appears to concede this point, which was the subject of many of my posts. (The ones about Jefferson Davis.) We're making progress! 

Because You Can Never Have Too Much of Why Presidents are Officers of the United States

Mark Graber

Apparently, the League of Sportsmen, Law Enforcement and Defense believes that the group's interests are best served by permitting an insurrectionist to run for the presidency.  Not exactly tough on crime.  But very tough on me.  A rather substantial portion of their brief is directed toward my work on Section 3.  Significantly, the brief focuses entirely on a draft of an article I posted on SSRN, not on the amicus brief I submitted to the Supreme Court of Colorado, touching similar issues.  The difference is significant.  As most people know, what gets posted on SSRN are typically drafts.  They often contain typos, missing footnotes, and footnotes not fully vetted (same for Balkinization posts).  The header to my draft acknowledges that this is a particularly early-stage piece.  By comparison, an amicus brief is expected to be a final project with no typos and all footnotes fully vetted.  Unsurprisingly, the brief has found some flaws in the draft (I have found more, new drafts forthcoming soon), but none in the brief.  More to the point, with one trivial and one admittedly less trivial exception, the alleged flaws are illusory.

The Sportsmen’s Brief does not dispute my claim that “the Congressional Globe for the Thirty-Ninth Congress, 1^st Session, is ‘littered with statements acknowledging that the President and Vice President were officers.’”  The point I was making in the contested paragraphs was simple.  The persons responsible for the Fourteenth Amendment routinely assumed that Presidents and Vice Presidents were “officers,” “officers of the United States,” and “officers under the United States.”  When members of Congress self-consciously considered the relationship between “officer,” officer of the United States,” and “officer under the United States,” they concluded that phrases had the same scope and meaning, unless context clearly demonstrated otherwise.  The Sportsmen’s Brief and, for that matter, all other briefs submitted so far, do not discuss this Congressional Report (the crucial page is 3939).

The Sportsmen do not challenge the substantial evidence that the persons responsible for framing and ratifying Section Three thought they were disqualifying all past and present officeholders from all offices.  As Gerard Magliocca, many others, and I have repeatedly noted, when asked to summarize Section Three, Republicans attached no significance to "of the United States." "under the United States," or the specific form of an oath.  Rather, they said Section Three disqualified any person who after taking an oath of office participated in an insurrection.  No brief against disqualification challenges that mountain of evidence.

My mistake, the Sportsmen’s Brief contends, is that “most of [my] citations are to debates on other topics in the months before § 3 came into being.”  I will see the Sportsmen and raise.  With the exception of a colloquy between Senators Reverdy Johnson of Maryland and Senator Lot Morrill of Maine, which the Sportsmen's Brief graciously concedes demonstrates that the President is an “officer under the United States,” none of the numerous quotations I cited in the contested paragraphs were assertions by members of Congress about the proper interpretation of Section Three.  The point was simply that members of Congress routinely assumed the president was an officer of the United States when making speeches on other topics.  This was a matter that went without saying.  When casually or offhandedly noted in a speech, we would expect no more response to the point than a response to the routine use int he Thirty-Ninth Congress of male pronouns to refer to office-holders.

The Sportsmen’s Brief makes the strange claim that many of my citations have “nothing concerning the president and vice president being officers.”  The citations in question seem to be those in which a member of Congress declares the presidency and/or vice presidency to be an office (at least such a quote can be found on every page in which the brief makes this complaint--the brief appears to have missed a few of those quotes).   I think rather obvious that a person who holds an office is normally considered an officer.  No one claimed to the contrary in 1866.  Indeed, I do not see an argument to the contrary in the brief.

The Sportsmen’s Brief takes particular offense to one sentence in the draft: “Many members of Congress, sometimes quoting President Andrew Johnson or Attorney General James Speed, declared that the president was ‘the chief executive officer of the United States.’  The brief then runs though the footnote claiming my citations do not support the proposition.  Some preliminaries.  Contrary to the Sportsmen's Brief, Senator Henry Wilson on p. 915 did assert that the president was the “chief Executive officer of the United States.”  Score one for me. Senator Willard Saulsbury of Delaware made the same assertion on p. 151 of the appendix to the Congressional Globe (the footnote mistaken places the quote on 150.  I think we should score this a draw).  The Sportsmen's Brief’s claim with respect to other sources that no member of Congress agreed (or disagreed) with these assertions that the president was an officer of the United States is hardly surprising.  As noted in the brief and in this essay, these claims were made in passing, in speeches devoted to other matters.  Again, that no member of Congress explicitly agreed when another member used the male pronoun hardly weakens the case that these were people firmly committed to some form of male supremacy.  The brief regards as “most egregious()” my claim that Representative Roscoe Conkling of New York quoted Attorney General James Speed, when Conkling merely asked that a report Speed had written by read to the Senate.  I will leave to readers to determine whether Conkling quoted Speed or whether Conkling asked an officer of the House to quote Speed makes any difference.  The more crucial point, from my perspective is that when members of Congress are quoting President Johnson or Attorney General Speed, the footnotes generally say so (again, a cite check is needed).

There is one item in the string footnote that the Sportsmen’s brief has convinced me should be deleted from the final manuscript or, better yet, elaborated upon. When Senator Jacob Howard of Michigan quoted President Johnson as declaring he was the “chief civil executive officer of the United States,” Howard prefaced those remarks by stating that Johnson was “adding what is not contained in the Constitution or the laws of the land.”  This is not a quotation that declares that the president is an officer of the United States. Score one for the brief.  The brief is nevertheless wrong to think that Howard was condemning Johnson’s claim that the president was an officer of the United States.  Howard thought the president an officer.  In the same speech, Howard spoke of “the President of the United States, who holds his office, under the Constitution.”  The general context makes clear that Howard’s beef with President Johnson was not over the nature of the presidential office, but over the power to determine the status of former confederate states.  Again, readers can look at pp. 2550-51 and make their judgment.

The great joy of the computer age is no reader need rely on the Sportsmen’s Brief, my writings, or any other account of the use of “officer” in 1866.  The Congressional Globe is online.  The Hein Online version (and others) are searchable.  Perform your own search using various versions of “officer.”  The results, I predict, will be convincing beyond a reasonable doubt.  The persons responsible for the Constitution of 1866 had no doubt that presidents were officers of the United States subject to disqualification.

Hot News. The Amars' Brief in Trump v. Anderson

Jason Mazzone

Akhil and Vik Amar have filed an eye-popping and game-changing brief in Trump v. Anderson (the section 3 case before the Supreme Court). The Amars' brief centers on the significance to the drafting and ratification of section 3 of the First Insurrection of the 1860s--before the Civil War--in which John B. Floyd and other high-level executive officials in Washington, DC, violated their oaths as part of a plan to hand over southern forts to rebels and to prevent the lawful inauguration of the Abraham Lincoln. In their meticulous analysis of these 1860s events and the responses to them, the Amars bring a new and powerful lens to the issues now before the Supreme Court. Read the brief here.

The Colorado cake wars continue, with a literally colorful twist

Andrew Koppelman

Treat Section Three Like Section One

Gerard N. Magliocca

I want to flag a common mistake in some of the Section Three analysis. The mistake is treating Section Three of the Fourteenth Amendment very differently from Section One. Here are three examples:

1. "Only an event as bad as the Civil War can be a Section Three insurrection." George Will makes this error in his column today. Why is this an error? In part, because Section One is not read this way.

Suppose in the affirmative action last year a lawyer for UNC made the following argument: "My client's use of racial preferences for admissions is not as bad as the Black Codes of 1865-1866. Thus, the UNC policy is unconstitutional." I think we would all agree that this logic would be laughed out of court. The meaning of any given provision is not confined to the mischief that prompted its proposal and ratification.

2. "Section Three is too ambiguous to apply."

Suppose a lawyer got up and said "Section One is too ambiguous to apply." That line of thought would cut down scores of decisions incorporating the Bill of Rights, striking down laws prohibiting interracial and same-sex marriage, and so on To be fair, Charles Fairman did famously argue (in the 1940s) that Section One was too ambiguous to support incorporation. But the Court and most scholars eventually rejected that view. "Equal protection" and "due process of law" are no more ambiguous than "engaged in insurrection." 

3. "Section Three requires an Act of Congress to apply."

I've spilled a lot of ink on this one before, but Section One contains no such requirement.

Insurrections in the Nineteenth Century: Real and Imagined

Mark Graber

Charging a grand jury in Rhode Island after the Dorr Rebellion, Supreme Court Justice Joseph Story elaborated on the well-established common/constitutional law of treason and insurrection.  The Massachusetts jurist declared.

it is not necessary, that it should be a direct and positive intention entirely to subvert or overthrow the government. It will be equally treason, if the intention is by force to prevent the execution of any one or more general and public laws of the government, or to resist the exercise of any legitimate authority of the government in its sovereign capacity. Thus, if there is an assembly of persons with force, with an intent to prevent the collection of the lawful taxes or duties, levied by the government,—or to destroy all customhouses,—or to resist the administration of justice in the courts of the United States, and they proceed to execute their purpose by force,—there can be no doubt, that it would be treason against the United States.

Story’s analysis was commonplace from the ratification of the Constitution until the end of Reconstruction.  Five Supreme Court opinions, Twelve Supreme Court judicial opinions on circuit, ten other federal judicial opinions, more than ten legal treatises, and more than ten state court opinions offered similar analyses of the common/constitutional law of treason and insurrection.  John Marshall, Benjamin Curtis, Stephen Field, Francis Lieber, Nathan Dane, William Alexander Duer and Simon Greenleaf were among the legal luminaries who championed the understand of treason and insurrection that Republicans during Reconstruction constitutionalized when framing and ratifying Section Three of the Fourteenth Amendment.  I have discovered only one relative minor legal treatise published before 1866 that dissents from this consensus.

Constitutional lawyers when Section Three of the Fourteenth Amendment was framed recognized that an insurrection involved a) an assemblage, b) resisting any federal law or interfering with the course of a federal proceeding, c) by force or intimidation, d) for a public purpose.  Not every writing laid out all four of these elements, but with the exception of one criminal law treatise, none offered a rival account of the common/constitutional law of treason and insurrection.  Variations exists, but none are germane to whether an insurrection took place on January 6, 2021.

The events of January 6 satisfy the nineteenth century conditions for an insurrection.  An assemblage formed.  The crowd was far greater in numbers than the mobs that assaulted federal officials during the Whiskey and Fries Insurrections.  The assemblage was resisting both federal law and the legitimate authority of the government in its sovereign capacity.  The mob that stormed the Capital was attempting to prevent the lawful transition of power from Donald Trump to Joseph Biden.  The resistance was by force, violence, and intimidation.  The mob injured police officers and threatened to murder government officials. The assemblage had a public purpose.  Members believed the election had been stolen.  They were not there to take congressional furniture to sell on Ebay.

Chief Justice John Marshall in the wake of the Burr Rebellion explained who was an insurrectionist.  His opinion in Ex parte Bollman (1807) asserted, “if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all of those who perform any part, however minute or remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”  One member of Congress noted during the Civil War that if a person knowingly sold a pair of shoes to a confederate soldier knowing those shoes would be used in battle, then the shoe salesperson was an insurrectionist for constitutional purposes.  The Blackstonian principle that in treason all are principles was repeated in numerous judicial opinions and legal commentaries from the ratification of the Constitution to the end of Reconstruction.  A person who merely aids and abets or solicits a murder is not a murderer, but the common/constitutional law of insurrection and treason during the Civil War declared a person who aided and abetted or solicited an insurrection to be an insurrectionist.  I have discovered only one dissent from that consensus and that person appears to have changed his mind during the Civil War.

Speakers had no automatic constitutional immunity from treason and insurrection prosecutions. Supreme Court Justice Benjamin Curtis on circuit informed a grand jury that treason or insurrection was committed by “every one who counsels, commands, or procures others to commit an overt act of treason, which is accordingly committed.”  Judge John Kane declared that “successfully to instigate treason is to commit it.”  Judges and legal commentators disputed the relationship between speech and treason, with general agreement that “mere words” were not sufficient.  With only one clear exception, however, all legal commentators before the Civil War agreed that incitement to insurrection was insurrectionary behavior if the incitement was acted upon.  Much speech we consider constitutionally protected they thought treasonous.  The Brandenburg v. Ohio (1969) rule that the speech must be incitement to immediate violence was for the distant future.

Donald Trump is the paradigmatic person the persons responsible for Section Three of the Fourteenth Amendment would have disqualified for engaging in an insurrection.  Trump, the evidence indicates, instigated the attack on Congress.  At a minimum, he inflamed an angry mob and then refused to use his powers to protect Representatives and Senators.  A case might be made that Trump’s behavior is protected by contemporary First Amendment doctrine, although most free speech experts think otherwise.  No reasonable case can be made that prominent Republicans in 1866 would have thought Trump’s words and actions constitutionally protected.

Those who oppose disqualification champion an alternative means for determining what engaging in an insurrection meant in the nineteenth century.  Rather than engaging with John Marshall, Joseph Story, Benjamin Curtis, other judges of the time, and the legal literature, they prefer the method of deep contemplation.  On the assumption that the framers thought long and hard about insurrections, Ross Douthat, Steven Calabresi and others, have apparently concluded that if they think long and hard about insurrections, their thoughts will mirror those of Reconstruction Republicans.

That mirror is cracked.  Several contemporary commentators, for example, deduce from the frequent tendency of nineteenth century legal commentators to speak of “insurrections or rebellions,” that “insurrection” and “rebellion” must have had the same or similar meaning.  A review of such queries as “soup or salad” or “plastic or paper” might have disabused them of this notion, but maybe they prefer to eat in or have others do their shopping.  To be fair, “insurrection” and “rebellion” were treated as synonymous by an Alabama opinion in 1837.  Nevertheless, the far more common view distinguished a “rebellion” from “a mere insurrection.” Cases and commentators described vital gradations between rebellions and insurrections or between insurrections.  The Supreme Court of the United States in The Amy Warwick (1863) described the Civil War as “no loose, unorganized insurrection, having no defined boundary or possession.” Numerous state cases quoted or paraphrased this passage when distinguished full scale rebellions from more local insurrections. Senator Willard Saulsbury of Delaware maintained that an “insurrection is . . . the act of unorganized individuals” as opposed to rebellions which required “States or organized political communities.”

Close your eyes, think deep thoughts, delete any reference to nineteenth century matters on your computer and you might imagine, as some commentators have, that an insurrection has to be of a certain duration, a certain scope, have a certain probability of success, and more generally resemble the Civil War.  All this is reasonable.  The only problem is history.  The common/constitutional law of insurrection and treason, as noted above, had no duration, scope, or probability of success requirements.  Judge Kane in Hanway v. United States stated, “the quantum of the force employed neither lessens nor increases the crime, whether by one hundred or one thousand persons is wholly immaterial.”  “[I]t is altogether immaterial,” he continued, “whether the force used is sufficient to effectuate the object; any force connected with the intention, will constitute the crime of ‘levying war.’  Nineteenth century jurists did not measure an insurrection by the probability of victory.  Justice Stephen Field’s charge in Greathouse v. United States asserted, “[i]t is not essential to constitute the giving of aid and comfort that the enterprise commenced should be successful and actually render assistance.”

Another ahistorical move is the claim that the Constitution distinguishes between inciting an insurrection and engaging in an insurrection.  The basis of this claim is Section Two of the Second Confiscation Act, which punishes those who “incite, set on foot, assist, or engage” in an insurrection.  Close your eyes, burn all copies of the Congressional Globe, and you might imagine this section states four separate offenses, all of which differ from treason, which is punished in Section One of the Second Confiscation Act.  Substitute history for imagination and a different interpretation emerges.  Republicans during the debate over Section Two explicitly stated that the provision does not set out four separate offenses, each of which is different from the treason punished in Section One.  Senators verbally agreed with Jacob Howard of Michigan when he declared that there is "no distinction between inciting a rebellion or insurrection, setting on foot a rebellion or insurrection, assisting in a rebellion or insurrection, or engaging in a rebellion or insurrection."  The sponsors of Section Two agreed that each of these offenses was treason, which was also punished by Section One.  The point of Section Two and related provisions in the Second Confiscation Act was to enable juries to convict persons of insurrection without mandating the death penalty and forestall any judicial attempt to narrow the accepted definition of insurrection.  This is why Republicans provided the same punishments for persons who incite, set on foot, assist, or engage in insurrections and disqualified all such persons from holding office. (Has anyone noted that if "engaged in insurrection" in Section Two of the Second Confiscation Act differs from "treason" in Section One, then Robert E. Lee could claim that he was not disqualified under Section Three of the Fourteenth Amendment because he was a traitor and not an insurrectionist.)

Constitutional analysis that begins with how Reconstruction Republicans thought about insurrection need not end with nineteenth century thinking.  That the persons responsible for Section Three of the Fourteenth Amendment thought persons who violently resisted for principled reasons the parking laws in Washington, D.C., sold shoes to Confederate soldiers, and wished Jefferson Davis a happy birthday (I’m not making this up) were traitors does not compel contemporary citizens of the United States to reach the same conclusion.  We might limit insurrections to more consequential laws, insist on more consequential participation, and demand far greater protection for free speech.  When we do so, however, we should acknowledge that we are interpreting the words of Section Three in light of contemporary values and make no pretense that we are channeling the original meaning of the Fourteenth Amendment.  And we should take very seriously the possibility that even on a revised understanding of insurrection rooted in contemporary values a powerful case is being made that persons who incite a mob to prevent by violence the peaceful transition of presidential power ought not be eligible to exercise official power in the United States.

The Education of Mike Johnson

David Super

      On January 7, House Speaker Mike Johnson announced an agreement with Senate Majority Leader Chuck Schumer on the total amount that would be available for discretionary appropriations in the fiscal year that began more than three months earlier.  The unusual timing of his announcement – on a Sunday afternoon, after the day’s political talk shows had concluded – provides some indication of just how proud the Speaker was of his achievement. 

     The Speaker’s disappointment is not surprising:  this agreement was essentially to abide by the deal former Speaker Kevin McCarthy made last summer with President Biden.  Last summer’s deal enraged the far-right House Freedom Caucus, causing them to shut down the House floor until Speaker McCarthy agreed to renege on his promise. 

     Speaker McCarthy’s directive that appropriators make draconian cuts in domestic programs ensured that no progress would be made on appropriations over the summer and early fall as Democrats refused to honor Speaker McCarthy’s duplicitous behavior.  With Republicans endlessly squabbling, and rejecting many of their own extreme appropriations bills, Speaker McCarthy saw that he had no chance of blaming a government shutdown on Democrats.  Accordingly, he tabled a six-week temporary funding measure, which passed with Democratic votes.  A few days later, Freedom Caucus Members defenestrated him.   

     After the Freedom Caucus rejected various candidates for being too close to the Republican leadership and swing-district Members rejected high-profile disruptor Rep. Jim Jordan, the Republican Caucus unanimously settled on Rep. Johnson.  His far-right positions and obscurity met the respective needs of the Freedom Caucus and the swing-district Members. 

     Speaker Johnson promised to take a firmer stance on fiscal issues than Speaker McCarthy.  After the House Republicans’ internal divisions had dominated headlines for weeks, however, Speaker Johnson concluded that he, too, would be unable to blame a government shutdown on the Democrats.  He therefore tabled his own temporary funding bill in November.  With his conference divided, this again depended on Democratic support to pass.

     Since then, Speaker Johnson has been negotiating with Senate Democrats to establish a top-line funding number for appropriations bills.  Majority Leader Schumer refused to budge, however, reasoning that once he let Republicans walk away from one agreement, no future deals would have any value.  By early January, Speaker Johnson had come to recognize that his only choices were to begin shutting down the government in mid-January over his unwillingness to honor McCarthy’s budget agreement or to accept those funding levels.  Freedom Caucus Members threatened to revolt again if he did not achieve substantial budget cuts, but swing-district Members implored him not to provoke a confrontation he could not win. 

     The plan Speaker Johnson settled on with Senator Schumer retained the overall funding level from last summer’s agreement.  This included both the headline number Speaker McCarthy had insisted upon to make his cuts look more dramatic and a series of side agreements softening that number (e.g., by preventing some appropriations from counting against the overall ceiling) that were President Biden’s price for accepting the especially austere headline number.  Senator Schumer made two modest concessions to allow Speaker Johnson to save face:  speeding up by one year a cut in Internal Revenue Service enforcement spending and rescinding coronavirus relief funds that still had not been spent. 

     Predictably, Freedom Caucus responded the same way they did to Speaker McCarthy’s original deal:  by shutting down the House floor.  Speaker Johnson reportedly has responded by vacillating, expressing openness to reneging on his deal with Senator Schumer in meetings with far-right Members while assuring swing-district Republicans that he will honor his word. 

     By all accounts, House and Senate appropriators are working busily behind closed doors on the details of the twelve bills to fund the government.  Because the spending targets on which House Republicans have been insisting are so extreme as to be unacceptable to their own Members, no preliminary agreements with the Senate have been possible up to this point.  Appropriators clearly will be unable to finish the legislation and move it through both chambers of Congress by January 19, when the first four bills are needed to avoid a partial government shutdown.  Speaker Johnson therefore will have to bring another temporary funding extension to the House floor despite his earlier pledge not to do so. 

     House Republicans could still bring about a government shutdown by rejecting appropriations bills at the level Speakers McCarthy and Johnson agreed to, by attaching extremist policy riders to their appropriations bills, or by ousting Speaker Johnson and throwing the House back into chaos.  At this juncture, it seems unlikely that the Freedom Caucus will persuade enough of their colleagues of the desirability of fomenting such chaos in an election year. 

     All the year’s fiscal machinations obscure a simple reality:  the House, and therefore Congress, can only function when House Republicans come to accept their need for Democratic votes.  House Republicans cannot move legislation by themselves:  their margin is too narrow, the Freedom Caucus’s agenda is too extreme, and too many far-right Members are disinterested in legislating.  They are occasionally able to unite their conference to pass bills so wildly extreme that the Senate would not pass them and the President would not sign them.  Any conceivable compromise with the Senate and the President would fail far-right Members’ purity tests and thus require substantial Democratic votes to pass the final bill.  This is true for fiscal legislation, for a Farm Bill, for immigration changes, and for most other meaningful legislation. 

     The Freedom Caucus, of course, is adamant that Speaker Johnson not bring bills to the House floor that need Democratic votes to pass:  once it becomes acceptable for him to count on Democratic votes, the Freedom Caucus becomes largely irrelevant.  Speaker Johnson brought the appropriations extension to the floor in November knowing he needed Democratic votes, and he will presumably do so again later this week.  But neither he nor the rest of his conference has fully accepted the necessity of bipartisanship. 

     This stubbornness has seriously undermined Republicans’ own agenda.  Speakers McCarthy and Johnson’s refusal to negotiate with House Democrats has deprived them of any chance to seek concessions:  when putting a bill on the floor that depends on Democratic votes without prior conversation with Democrats essentially forces the speakers to craft bills with nothing whatsoever that Democrats might find objectionable. 

     Making obviously nonserious, extreme demands until the eve of deadlines eliminates any real chance of not getting blamed for a government shutdown.  So does continually reneging or threatening to renege on one’s own prior agreements.  The combined effect of these antics and waiting until the very last moment to begin negotiating seriously with the Senate yields very little bargaining power. 

     Speaker Johnson’s unwillingness to negotiate with House Democrats also puts him at a considerable procedural disadvantage.  The usual method of bringing legislation to the House floor is by way of a “special rule” proposed by the House Rules Committee.  (The regular House Rules are wholly unworkable:  the Senate is, by comparison, a humming machine of efficiency.  Accordingly, the majority party long has had the Rules Committee propose one-off special rules, with limits on debate and amendments, for the consideration of major legislation.)  This would seem easy as Republicans gave themselves a 9-to-4 majority on the Rules Committee (far in excess of their share of seats in the full House). 

     Speaker McCarthy, however, awarded two Rules Committee seats to Freedom Caucus Members, and a third to a close ally of the Caucus, in his desperate efforts to secure election in January.  This leaves House Republican leadership without a majority on the Rules Committee and hence no ability to bring legislation to the floor under a special rule if the far right is opposed.  Republican leaders could negotiate special rules with the Democrats on the Committee but thus far have adamantly refused to do so. 

     Republican leaders’ solution has been to bring contested legislation to the House floor under motions to suspend the rules.  Motions to suspend the rules limit debate and allow fast action, but they also require a two-thirds majority.  Thus, by refusing to negotiate with Democrats, House Republicans make themselves dependent on even more Democratic votes.  A party so deeply dependent on its opponents has very little leverage indeed.  And the more far-right House Republicans announce their intent to bring down legislation, the more Democrats Speaker Johnson will need to achieve a two-thirds majority.  Such a heavy Democratic vote would be unachievable on legislation that gives Democrats any serious qualms.   

     The hard right’s maximalist agenda would be unachievable in any event with the White House and Senate in Democratic hands, a tenuous Republican majority, and numerous components of that agenda wildly unpopular with the electorate.  House Republicans’ divisions and dogged opposition to bipartisanship, however, is causing them to squander much of the very real leverage they would have had as the majority party in the House.  Speaker Johnson is surely smart enough to see this.  His inability to free his conference from this denial of political reality and self-destructive behavior is therefore quite breathtaking.

     @DavidASuper1

Another Error in Griffin's Case

Gerard N. Magliocca

In Griffin's Case, Chief Justice Chase said that an Act of Congress was required to enforce Section 3. He then elaborated on that view in the following passage, which I will quote verbatim:

The views which have been just stated receive strong confirmation from the action of congress and of the executive department of the government The decision of the district judge, now under revision, was made in December, 1868, and two months afterwards, in February, 1869 [15 Stat. 344], congress adopted a joint resolution entitled “a resolution respecting the provisional governments of Virginia and Texas.” In this resolution it was provided that persons, “holding office in the provisional governments of Virginia and Texas,” but unable to take and subscribe the test oath prescribed by the act of July 2, 1862 [12 Stat. 502], except those relieved from disability, “be removed there from;” but a provision was added, suspending the operation of the resolution for thirty days from its passage.

The joint resolution was passed and received by the president on February 6, and not having been returned in ten days, became a law without his approval.

It can not be doubted that this joint resolution recognized persons unable to take the oath required, to which class belonged all persons within the description of the third section of the fourteenth amendment, as holding office in Virginia at the date of its passage, and provided for their removal from office.

It is not clear whether it was the intent of congress that this removal should be effected in Virginia by the force of the joint resolution itself, or by the commander of the first military district. It was understood by the executive or military authorities as directing the removal of the persons described, by military order. The resolution was published by command of the general of the army for the information of all concerned, March 22, 1869. It had been previously published by direction of the commander of the first military district, accompanied by an order, to take effect on March 18, 1869, removing the persons described from office. The date at which this order was to take effect, was afterwards changed to March 21.

It is plain enough from this statement that persons holding office in Virginia, and within the prohibition of the fourteenth amendment, were not regarded by congress, or by the military authority, in March, 1869, as having been already removed from office.

I have discovered that this statement by the Chief Justice was erroneous. An article in The Baltimore Sun, dated January 12, 1869, states the following. I will quote the entire article.

Removals in Virginia Under the Fourteenth Amendment

RICHMOND, Va, Jan 12.--Removals from office under the fourteenth amendment continued with rapidity. About one hundred officers of courts have been removed in the last three weeks--Robert Howard, clerk of the City Court, was removed to-day, and Andrew Washburne appointed to the vacancy.

---------------------------------------------------------------------------------------

Thus, the Chief Justice was wrong in saying that "persons holding office in Virginia, and within the prohibition of the fourteenth amendment, were not regarded . . . by the military authority, in March 1869, as having been already removed from office." The military authority was enforcing Section Three in Virginia in the absence of an Act of Congress in December 1868/January 1869. 

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 Johnson, 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 14^th 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."

Background As Foreground: Section Three of the Fourteenth Amendment and January 6th

Gerard N. Magliocca

This article of mine is now published in the University of Pennsylvania Journal of Constitutional Law.

https://con.law/print-articles/magliocca-fourteenth

A Question for Members of Congress

Gerard N. Magliocca

To follow up on my NY Times op-ed, reporters and voters can ask each member of Congress: "Do you support legislation to exempt Donald Trump from Section Three of the Fourteenth Amendment?" Some will quickly answer "Yes" or "No."

The tell comes when members decline to answer. If they think that Trump should be allowed to run, why won't they support legislation that does that? Note that this is not like a typical Supreme Court case where someone might rightly say: "I can't comment because the case is under review." Congress can moot the case by granting amnesty. There is nothing inappropriate about taking a stand on that issue now.

How the Supreme Court Could Rule Against Trump in the Colorado Case (and Why It Might Not Matter That Much)

Mark Tushnet

 Everybody assumes, I think correctly, that the Supreme Court will take one of the "off ramps" to avoid affirming the Colorado Supreme Court. (Note that the "reasoning" here is something like this: They won't want to "interfere" with the choice people have before them, and will therefore find the legal reasoning on one of the off-ramps adequate.) But here's a sketch of an argument for affirming the Colorado Supreme Court that wouldn't be all that threatening to the people's choice. (A sketch--there would be a lot of details to fill in.)

From 1789 through at least the adoption of the Fifteenth Amendment (note, the Fifteenth, not the Fourteenth), and perhaps longer, the administration of presidential elections was left in the first instance to the states (on what "in the first instance" means, see below).  So, for example, Article II says that electors shall be chosen "in such Manner as the Legislature may direct," and the electors are to meet "in their respective States." The elaborate initial mechanism for choosing the winner made sense on the widely shared assumption that there would be many "favorite son" candidates put forward by and winning in their own states but nowhere else.

One aspect of this state-based election administration is that each state would decide, according to its own law which candidates satisfied the constitutional qualifications for the presidency (in 1789, age, natural-born citizen subject to the qualification for people born before the United States came into existence, and fourteen years of residency). Section Three of the Fourteenth Amendment added the qualification at issue in the Trump litigation. It too would be determined in each state by the state's own processes, subject perhaps to the possibility, flagged in the literature on Powell v. McCormack, that the state's determination must satisfy a standard of minimal reasonableness.

Ballot design is also determined by each state. So, for example, in 1960 ballots could have (simplifying) two columns, each with the heading "electors pledged to" and underneath, the names John F. Kennedy and Richard M. Nixon. Or the columns could be headed "Electors chosen by" and underneath, "the Democratic Party" and "the Republican Party." That is, whether a candidate's actual name appears on the ballot is determined by state law.

Were the U.S.Supreme Court to affirm the Colorado Supreme Court, it could say that the Colorado Supreme Court's decision was within the bounds of constitutional reasonableness. I think a natural implication would be that Colorado's ballot design couldn't say "Electors pledged to the nominee of the Republican Party" were Trump to be that nominee. But, it seems to me, the ballot could say, "Electors chosen by the Republican Party."

Suppose then that a majority (or plurality) of Colorado's voters vote for the electors chosen by the Republican Party. Those electors meet on the designated day and cast their votes for Donald Trump. The secretary of state, charged (under state law) with the ministerial task for forwarding the votes to Congress, does so. When the time comes to count the votes, a decision is made whether to count Colorado's votes. (That's why Colorado gets to decide on qualifications only in the first instance; Congress ultimately decides whether to count the votes for a candidate whose qualifications are disputed.) 

There's one additional wrinkle. As Josh Marshall has pointed out, if qualifications are determined on a state-by-state basis, we can be pretty confident that Trump won't be found disqualified by the state-based processes in deep red states (and that he won't be found disqualified in some deep blue states). All the action, then, will be in battleground states, and we should be looking for predictions about the likely action of state supreme courts in those states. For what it's worth, my sense is that the courts in Michigan, Pennsylvania, Arizona, and Georgia wouldn't find him (or uphold a finding that he was) disqualified (I don't know enough about Nevada to say one way or the other). My sense is that things in Wisconsin have become so toxic that the state Supreme Court there might keep him off the ballot (and I have no sense of how the authorities in charge of ballot design would respond).

A crude summary: Trump wouldn't be on the ballot in states that he wouldn't win anyway and will be on the ballot in all (or--alas, I have to say this--almost all) of the states that he has a chance of winning. So, with the parenthetical in the preceding sentence in mind, maybe affirming the Colorado Supreme Court wouldn't be crazy after all.

New Draft Paper by Heilpern and Worley on Whether the President is an "Officer of the United States" under Section 3

Gerard N. Magliocca

Here is the SSRN link. Here is a response by Professors Blackman and Tillman. I've amended this post to remove the Heilpern/Worley Abstract, as it's quite long and you can find it when you go to the link.

The Circuit Report of In Re Davis

Gerard N. Magliocca

In my law review article on Section Three, I argued that Chief Justice Chase contradicted himself on whether an Act of Congress is required to enforce Section Three. In Griffin's Case, Chase said no. In the Jefferson Davis treason trial proceedings, Chase said yes because he thought that Section Three barred the treason prosecution in Virginia even though no Act of Congress was enforcing Section Three in Virginia. I rested that conclusion, in part, on a line at the end of the Davis report that stated: 

There’s Nothing Undemocratic About Barring Trump From the Ballot

Andrew Koppelman

The Colorado Supreme Court’s holding disqualifying Donald Trump from the ballot, and the similar ruling by Maine’s secretary of state, have been widely denounced by various members of the pundit class as undemocratic. There are plenty of grounds for worry about these decisions, but this can’t be one of them. These critics’ fears about what’s at stake as far as our democracy is concerned have been badly misplaced: It is only because of democracy-thwarting provisions of the Constitution that Trump has any hope of becoming president again.

I explain in a new column at The New Republic.

Shooting Fish in a Barrel--The Presidency and Section 3

Gerard N. Magliocca

In prior posts, I promised a complete list of contemporary references to Section Three's exclusion of leading Confederates from the presidency. I did submit such a list for my testimony in Maine, though I've found additional examples since then. For those interested, here is the Maine list.

1.       Gallipolis Journal (Feb. 21, 1867) (stating that Reconstruction without Section Three of the Fourteenth Amendment "would render Jefferson Davis eligible to the Presidency of the United States").

2.       The Pittsburgh Commercial (June 29, 1867) (quoting a speech by General John Rawlins, Ulyssus S. Grant’s top military aide, in which Rawlins said that under Section Three: “Those rendered ineligible to hold office are not disfranchised, but all the rights appertaining to citizens are theirs to enjoy, save that of holding office. Every other citizen in the United States who has the requisite qualifications, no matter how conspicuous he was in the rebellion, no matter how hard he fought against the Government, is eligible to any office civil or military, State or Federal, even to the Presidency.”).

3.       The Milwaukee Sentinel (July 3, 1867) (stating that Jefferson Davis "may be rendered eligible to the presidency by a two-thirds vote of Congress").

4.      The Sunbury Gazette (July 18, 1868) (stating that under universal amnesty "the worst rebels are to be eligible for the highest national offices, so that upon this Democratic platform Robert E. Lee might yet become President of the United States"). 

5.      The Daily Journal (Oct. 19, 1868) (“The third article of the fourteenth amendment excludes leading rebels from holding offices in the Nation and state, from the presidency downward”).

6.       The New York Daily Herald (Mar. 29, 1871) (advocating Section Three amnesty legislation that "will make even Jeff Davis eligible again to the Presidency).

7.       The Indiana Progress (Aug. 24, 1871): (quoting by a speech by Senator Oliver Morton of Indiana stating he would never vote for Section Three amnesty for Jefferson Davis and John C. Breckenridge [the Confederate Secretary of War and former U.S. Vice-President] because that would make them eligible "to the Congress of the United States, it may even be to the Presidency"

8.      The New National Era (Aug. 31, 1871): (stating that Section Three amnesty would make Confederate leaders “eligible to the presidency").

9.      The Highland Weekly News (Sept. 21, 1871): (stating that the Fourteenth Amendment “provides that no rebel who had violated an official oath to support the Constitution of the United States, should ever be eligible to the Presidency").

10.     The Public Ledger (Oct. 3, 1871): ("Fred[erick] Douglass might be President. Carl Schurz cannot [he was foreign-born]. Every Southern man who lies under the ban of the Fourteenth Amendment cannot.").

11.     The Burlington Free Press (Jan. 19, 1872) (summarizing a debate in Congress on a proposed constitutional amendment limiting the President to one term in office that “would be treating General Grant more severely than Jefferson Davis, because although the latter is disqualified by the 14^th amendment, it is still within the power of Congress to remove his disability”).

12.     Urbana Citizen and Gazette (Apr. 25, 1872) (stating that amnesty would make Jefferson Davis "eligible to a seat in the Senate, or to the Presidential chair itself").

13.     Chicago Tribune (May 24, 1872): (stating that the Amnesty Act of 1872 made "Alexander M. Stephens, the Vice President of the Rebel Confederacy, eligible to the Presidency of the United States").

14.     The Tiffin Tribune (July 18, 1872) (quoting Congressman John A. Bingham's speech declaring that he would never support Section Three amnesty for Jefferson Davis and other Confederate leaders because they "should never hereafter be permitted to be President”).

15.     The Rutland Daily Globe (Dec. 11, 1873) (stating that a general Section Three amnesty was justified "even if Jeff Davis is made eligible to the presidency").

16.     Ottomwa Weekly Courier (Aug. 18, 1875) (quoting a speech by Senator Morton in which he said that all but about 100 former Confederates “have had every political disability removed arising from the Fourteenth Amendment and are eligible to be elected to the highest office in the land”). 

17.     44 Congressional Record 325 (1876) (statement of Rep. Blaine of Maine) (rejecting Section Three amnesty for Jefferson Davis because that would mean that he “would be declared eligible to fill any office up to the Presidency of the United States”).

18.     Chicago Tribune (Jan 12, 1876) (stating that the amnesty legislation before Congress “is a bill to make DAVIS eligible to the presidency”).

19.     Sioux City Daily Journal (March 5, 1879) (stating that Jefferson Davis could be the Democratic nominee for President in 1880 “but for one thing” and then quoting Section Three of the Fourteenth Amendment).

20.     The Belleville Advocate (May 7, 1880) (stating that holding President Grant ineligible to a third term of office would “be placing him on a par with Jefferson Davis so far as “eligibility” for the presidency is concerned”).

21.     Buffalo Morning Express (April 28, 1882) (summarizing a debate in the House of Representatives on universal amnesty legislation and stating that this would mean that Jefferson Davis could be “Commander-in-Chief of the Army of the United States”).  

For additional examples, see, e.g., The Burlington Weekly Hawkeye (Jan. 20, 1876), at 4 (stating that Democrats wanted Davis to receive amnesty "with a design to make him the Democratic candidate for President in 1876 or 1880").