Mike Ramsey’s recent post, which is in part a response to mine, raises several interesting points concerning the current controversy over whether Donald Trump is barred by Section 3 of the 14th Amendment from again serving as president. I’d like to make two points in response.
First, Prof. Ramsey is correct in saying that I’ve made a textual argument grounded on the glaring omission of “President or Vice-President” in a list that specifically includes “a Senator or Representative in Congress, or elector of President and Vice-President[.]” But in addition to the textual argument, I’ve also offered an explanation for what I believe was the deliberate omission of those two elephantine federal offices.
It would have been mathematically impossible for unreconstructed rebel voters to pick winners in a nation-wide election. There was, therefore, no reason not to give voters a free choice in elections for president and vice president. The same is not true for elections in a single State. The specific barred federal offices listed in Section 3 are all the federal offices that are elected in a single State.
So, I’ve offered an explanation why the presidency and vice presidency were not barred offices. I have yet to see any explanation that answers the question I have posed: If it was understood that the presidency and vice presidency were to be barred offices, why were they not specifically included in the list of barred offices at the beginning of Section 3?
My second point is this: Prof. Ramsey cites an article written by fellow blogger John Vlahoplus. That article discloses that, when Congress was debating whether to grant a general amnesty to former rebels:
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.” Another [in 1871] 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?”
Ramsey concludes: “[A]t least a number of people in that period didn’t draw the textual inference Weisberg thinks is inevitable.”
But the 1870 census counted some 38.5 million American citizens. No one reasonably expects that a population numbering in the tens of millions will have unanimous opinions about anything. Assuming that the two articles cited in Vlahoplus’s essay were each written by one person, we now have some idea how four (4) persons understood the scope of Section 3 in the 1868 – 1871 time-frame.
Baude and Paulsen tell us that Sen. Reverdy Johnson initially understood Section 3 as not extending to the presidency or vice presidency, but Sen. Morrill pointed to the mousehole of “any office, civil or military, under the United States,” and that might or might not (I don’t believe the result is clear) have changed Sen. Johnson’s mind. And then there are the two authors of the two 1871 articles cited in the Vlahoplus essay.
Three or perhaps four persons taken from a population comprising all the adults among 38.5 million Americans would not be a statistically significant sample, I don’t think. What was the understanding of the rest of those millions of adults? Did they, like Sen. Morrill, discover two large elephants crammed into one small mousehole? And the hundreds of legislators whose affirmative votes resulted in the adoption of the 14th Amendment—did they share Sen. Johnson’s initial understanding, or did they also peer into the mousehole?
In my view, Sen. Morrill and the two article-writers referenced in the Vlahoplus essay—and Baude and Paulsen, and Laurence H. Tribe and J. Michael Luttig, and anyone else who now believes that Section 3 bars Trump from serving as president—were and are outliers. Millions of Americans understand that federal elective offices are not limited to senator, representative, and federal elector; federal elective offices also include the president and vice president. Those millions of Americans would also agree—if the issue could be presented to them in a way that was devoid of today’s overheated partisan rhetoric—that Sen. Reverdy Johnson’s initial understanding of a provision that specifically lists senator, representative, and federal elector as offices barred to disqualified persons, but omits both the presidency and vice presidency from that specific list, was what would have been generally understood in 1868, 1871, or 2023.
Posted at 6:55 AM