I recently submitted a research paper to Social Science Research Network (SSRN) on a key Section 3 (of the 14th Amendment) related topic. Below is the excerpt and a link to the full paper. As the title suggests, this one is for legal geeks only, and is a supplement to my prior post on Trump's culpability under Section 3 here: https://www.citizenanalyst.com/post/this-argument-has-legs-the-14th-amendment-disqualifies-trump-from-the-presidency.
Following the Colorado District Court’s ruling on Trump’s presidential eligibility under Section Three, the arguments that the president is neither an "officer of the United States", nor the presidency an "office under the United States", now warrant closer examination. Judge Sarah Wallace in Colorado ruled that while Trump did engage in insurrection on January 6th for Section Three purposes, she also concluded that “for whatever reason, the drafters of Section Three did not intend to include a person who had only taken the Presidential oath,” and more specifically, “that the drafters of the Section Three of the Fourteenth Amendment did not intend to include the President as ‘an officer of the United States’.” This paper will discuss the specific question of the president as an “officer of the United States,” and in turn seek to demonstrate the inherent tension between “originalism” and “textualism” on this particular legal issue.
While others have already attempted to show that the framers of Section Three of the Fourteenth Amendment thought they were subjecting a current or former president to its provisions, I attempt to approach the question from a slightly different angle. I ask two important questions: first, was the phrase "officer of the United States" actually intended as a constitutional "legal term of art" in the first place? And then second, assuming it was, what exactly is its meaning? Though theoretically since the Fourteenth Amendment was written after the original constitution, and thus it supersedes (at least to the extent it contradicts) everything that came before it, it's worth asking these two questions to see what, if any, historical context there was for this debate in the first place. Without knowing that context, we have no way of knowing whether this is truly "originalism" properly understood, or whether this is simply contemporary constitutional "originalist" scholars imposing a modern manufactured interpretation on the constitution that was foreign to the framers in both 1787 and in 1866.
Professors Josh Blackman, Seth Barrett Tillman, Steven Calabresi, and former Attorney General Michael Mukasey have all made the case that the text of the Constitution, particularly in the Appointments and Commissions clauses of Article 2, implicitly give us a compelling answer that the president is not an "officer of the United States." But while Calabresi in particular makes the case clearly and concisely, none of them take their intratextualist approach to its logical conclusions, and instead leave out other provisions of the Constitution that muddy their argument. Looking at all of the relevant provisions of the Constitution, we're left with only one conclusion: the words of the Constitution alone simply do not give us a clear answer as to who, or what, an "officer of the United States" is, and certainly not a clear enough answer to claim that the president, as the highest ranking public official in the land, is excluded from that definition.
If the text alone does not clearly tell us, however, then historical evidence must serve as a critical supplement. This is where tension arises between the legal doctrines of "textualism" and "originalism" and where this paper adds to the literature. The overwhelming body of historical evidence suggests that almost everyone, starting with the Constitutional Convention all the way up through at least Reconstruction, thought the constitutional definitions of "officer," "officer of the United States," "officer under the United States," and everything in between, included the president. Additionally, the evidence from the 20th and 21st centuries, though less substantive, does little to alter this historical context.
Read the full paper at SSRN here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4668398
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