By Mark Graber
A long exhaustive search has finally found an article published within ten years of the framing of the Fourteenth Amendment that declares that the President is not an officer of the United States. Congratulations to Josh Blackman and Seth Barrett Tillman for unearthing the Louisville Daily Journal’s series of pieces claiming, contrary to what President Andrew Johnson said about his job description, that Johnson was not an officer of the United States. Of course, the comment was not made in respect to Section Three of the Fourteenth Amendment, but apparently that is a trifle. A source does exist. Eureka.
Maybe not. An historian might ask, how representative is the Louisville Daily Journal and what is the Louisville Daily Journal representative of? With respect to the second question, a little newspaper search revealed that the Louisville Daily Journal was a Democratic party newspaper bitterly opposed to the Fourteenth Amendment, the impeachment of Andrew Johnson, and the possible presidency of radical Republican Senator Benjamin Wade of Ohio, the probable president if Johnson was impeached (unless Senators were not officers of the United States). Before Donald Trump was subject to disqualification, originalists thought that the Republicans who voted for the Fourteenth Amendment were the authoritative source on the original meaning of that text. Now apparently Democrats are the higher authority. I look forward to many changes in the Supreme Court’s jurisprudence based on how white supremacists and former rebels described the post-Civil War Amendments (hint, black rule is constitutionally mandatory).
With respect to the first question, I decided to do two random searches. The first was the record of the Andrew Johnson impeachment. The second was American newspapers in 1868 (I used the Newspapers Archives site). For the first, I searched “officers of.” For the second, I searched “officers of the United States” (I did a narrower search simply because “officers of,” which got 71 hits for the impeachment, would have gotten a few thousand for Newspaper Archives, almost all of which would not have been on point. Indeed, I looked at only the first 200 of the more than five hundred hits I got).
The first finding was Common Sense 15, Blackman/Tillman 0*. I found six references to the President or Vice President as an officer of the United States in the congressional records of the Johnson impeachment debate and nine references to the President or Vice President as an officer of the United States in the newspaper archives. I should note the 0 is explained by my decision to read only the first 200 hits. A quick check revealed the Louisville Daily Journal stories claiming the president was not an officer of the United States were in the database, just not in the first 200 hits. The asterisk reflects one article that referred to a Democratic paper that claimed the president was not an officer of the United States. Quite possibly the reference was to the Louisville Daily Journal.
I have been deluged with other citations claiming that the President is an officer of the United States. Gerard Magliocca has done amazing work unearthing some of these citations. John Vlahoplus has done yeoman work making many citations public and has sent me many more. James Heilpern and Michael Worthy have a terrific piece on SSRN that geometrically expands the number of commentators and commentary from 1866 to 1868 that treats the president as an officer of the United States for Section 3 purposes. Still, for the purposes of "scientific" accuracy (and my methods were not all that scientific), I decided not to refer to any article or citation that did not turn up in my random survey. If we make the reasonable assumption that persons on both sides of the disqualification argument have been searching for favorable citations and that good tools for doing so are easily accessible, based on the information so far made public my best guess is that you will find more than 25 newspapers that refer to the president as an officer of the United States for every one that does not.
The second finding is that the members of Congress and newspapers that regarded the president as an officer of the United States were overwhelmingly Republican. The members of Congress who claimed the president is an officer of the United States include Representative John Bingham of Ohio, who is often (and wrongly) regarded as the father of the Fourteenth Amendment, Representative James Ashley of Ohio, one of the main authors of the Thirteenth Amendment, Representative James Wilson of Iowa, the head of the House Judiciary Committee, and Senate Oliver Morton of Indiana, a prominent radical. The newspapers include such Republican stalwarts as the National Republican, the Cincinnati Commercial, and the Madison Wisconsin State Journal.
So, what do we know? With respect to Section 3 of the Fourteenth Amendment, there were at the time prominent assertions that former presidents and presidents were covered, and innumerable assertions that Section 3 disqualified anyone who held a federal or state office from holding any federal or state office. There are numerous instances, including a congressional report, where political actors and journals make no distinction, sometimes self-consciously, between “office(r),” “office(r) of,” and “office(r) under.” There are no instances so far discovered of any person between 1866 and 1868 making a distinction between these phrases and claiming the president for purposes of Section 3 was an "officer," but not an "officer of" or an "officer under." Zero. The only possible instance so far uncovered is of a Democrat, Reverdy Johnson (are we seeing a pattern here of those not wanting Trump to be disqualified), who recanted within approximately 15 seconds.
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