David Weisberg's post earlier this week reminded me that another frequent contributor here, John Vlahoplus, posted an article earlier this year addressing the question whether the disqualification provision of Section 3 of the Fourteenth Amendment applies to the presidency: Insurrection, Disqualification, and the Presidency, 13 Brit. J. Amer. Studies (forthcoming 2023).
Weisberg's argument is textual, based on the observation that Section 3 lists as specific disqualified offices "Senator, Representative in Congress or elector of President and Vice President" plus the general phrase "any office civil or military, under the United States." He asks:
If it were intended that the presidency and the vice presidency would be among the barred offices, what possible reason would there be to fail to specifically include “President or Vice-President, or” at the very top of the list? Would those five words have made Section 3 unacceptably verbose? Did the drafters fear a shortage of printers’ ink? Every reasonable, competent, careful, sober legislator would have included those five words at the very top of the list, if it was understood that those two offices would indeed be barred offices.
The Vlahoplus article, however, shows (among other things) that at least some commentators in the early post-ratification era (that is, in the late 1860s and 1870s) treated the disqualification as covering the presidency. See esp. pp. 7-10 of the linked draft. For example, in connection with debates over whether Congress should grant amnesty to former Confederate leaders (as Section 3 allows):
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?” [pp. 7-8, footnotes omitted].
Thus it appears that at least a number of people in that period didn't draw the textual inference Weisberg thinks is inevitable.
Assuming Weisberg is right about what appears (to us) to be the most natural reading of the text and that Vlahoplus is right about how people read it in the 1870s, what's the best originalist conclusion? In my view the text is ultimately what matters, not what people said about it. But our present-day confidence in our ability to read the text as it would have been read in past times has to be tempered somewhat by how people actually read it in past times. In any event, I recommend reading the Vlahoplus article in conjunction with the Weisberg post.
Aside #1: William Baude and Michael Paulsen address the question of disqualification and the presidency in their extensive new paper (pp. 107-109) but they don't go into the post-ratification evidence that Vlahoplus presents. Their arguments for disqualification from the presidency center on the text and (a little) on drafting history.
Aside #2: I think the presidential disqualification issue (if Weisberg and Vlahoplus are both right) is methodologically harder than the Section 3 self-execution question I discussed in an earlier post. In my view the text fairly clearly indicates that Section 3 disqualification operates of its own force and doesn't require congressional implementation. The fact that a single Justice (Chase) later said otherwise isn't enough to overcome the text. But Vlahoplus' post-ratification evidence is a lot stronger on several dimensions.
Posted at 6:20 AM