At Balkinization, Gerard Magliocca: John Bingham Explaining That Jefferson Davis Was Ineligible to be President. From the introduction:
One issue in the current Section Three debate is whether the presidency is an "office . . . under the United States" subject to disqualification. A point that I made in my original Section Three article was that the presidency must be covered, because to say otherwise would mean that Jefferson Davis was ineligible for every office except the highest one. More research has followed from John Vlahoplus [ed.: here] confirming that Americans in that era thought that Jefferson Davis was ineligible for the presidency.
I've found a speech by John Bingham in 1872 that provides additional evidence. By way of background, the Democratic Platform in that year argued for "universal amnesty" for all ex-Confederates and was a cause championed by Horace Greeley, the Democratic presidential candidate. Bingham gave a campaign speech in July1872 and pointed out that Congress recently gave to amnesty to most ex-Confederates:
"Why, then, do these gentlemen talk about general amnesty? Is the Republican Party to be stricken down unless Jefferson Davis is made eligible to be the Democratic candidate for President of the United States next after Horace Greeley? [Laughter] That is all there is left to this amnesty question."
RELATED: Professor Magliocca also filed this amicus brief regarding Trump and Section 3. From the introduction:
Section 3 of the Fourteenth Amendment is the constitutional expression of President Lincoln’s pledge in his Second Inaugural Address: “With malice toward none, with charity for all.” Instead of imposing criminal punishments or other harsh penalties on former officials who served the Confederacy, the Framers of the Fourteenth Amendment chose only to exclude them from office. Moreover, they gave Congress the exclusive power to forgive these officials if the public interest warranted their return to office. This Court must now apply these principles to the January 6, 2021 attack on the Capitol and to Donald Trump’s role in that attack.
This amicus brief relies on history to answer five legal questions. First, is the public use of violence by a group of people to prevent or hinder the execution of the Constitution an insurrection within the meaning of Section 3? Second, should the phrase “engaged in insurrection” in Section 3 be read broadly to include words as well as deeds? Third, does Section 3 apply to the Presidency? Fourth, does Section 3 apply to a former President who took an oath to support the Constitution only as President? Fifth, may Section 3 be enforced by state courts without an Act of Congress? The answer to all five questions is “Yes.”
So count another scholar who thinks that originalism can supply definite answers to modern legal disputes.
Posted at 6:02 AM