At The New Reform Club, Seth Barrett Tillman: Some Thoughts on Scholarship on Section 3 of the Fourteenth Amendment. An interesting passage:
You might ask why do I take a (or, indeed, any) position in regard to the meaning of the Constitution’s “officer of the United States”-language in 1868, but not in regard to meaning of the Constitution’s “Office … under the United States”-language in 1868. The reasons are as simple as they are clear. We have Supreme Court cases, scholarship, and other authorities, across the 19th century, before and after 1868, opining on the Constitution’s “officers of the United States”-language, and also because the meaning of “officers of the United States” was defined by the language of the Appointments Clause. Its meaning was fixed and determined by the document to which the 14th Amendment was added. There was no hard intellectual break or interregnum. There was no Year Zero; the Fourteenth Amendment was no tabula rasa.
By contrast, “Office … under the United States” was a legal, genealogical descendant of “Office … under the Crown.” That language and its meaning was known to the drafters of the Constitution of 1788 because it was in British statutes, and coordinate colonial era charters, early state constitutions, and colonial and state statutes, as well as in the Articles of Confederation. The Framers of 1787–1788 grew up with this phrase, and they well understood its meaning. But by 1868, after political disunion with Great Britain, after our appeals were no longer taken to the Privy Council, after we established independent bars and independent law schools [in lieu of the Inns of Court in London], after about 80 years had passed, the public and those who drafted, passed in Congress, and ratified the Fourteenth Amendment in the States, during 1866 through 1868, would no longer have had the same prior, formative experiences as those who had Framed the original United States Constitution. Those latter-day Reconstruction era Americans might have understood the same “Office … under the United States”-language differently from those who had framed the original Constitution of 1788. …
Posted at 12:51 AM