The Originalism Blog

More on Section 3David Weisberg

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.

Elias Neibart: Beyond LockeMichael Ramsey

Elias Neibart (Harvard Law School J.D. '25) has posted Beyond Locke and Towards a More Accurate Intellectual History of American Constitutionalism (Harvard Journal of Law and Public Policy, No. 36, 2023) (8 pages) on SSRN.  Here is the abstract:

At a time when originalism is supposedly at its high-water mark, an ahistorical myth about Locke and his influence persists. Courts have embraced a story about Locke and the American founding — invented in the twentieth century — and turned it into an authoritative "history" of 1787. And it’s not their fault. The myth of Locke has simply become so pervasive, dominating the academic, political, and legal realms. Even so, it is incumbent on originalists, who care deeply about the original legal ideas of the founding, to not lose sight of the original political thought of the period. Originalists should speak up when they witness invocations of Locke that don’t pass historical muster.

Originalism Works-in-Progress Conference: Submissions Deadline TomorrowMichael Ramsey

Reminder: the deadline for submissions for the 15th Annual Originalism Works-in-Progress Conference is tomorrow, 8/31.  The conference will be held in San Diego on February 9-10, 2024.  Information about the conference is here.  Information about last year's conference, with a list of papers and participants, is here.

Submissions may be sent to Mike Rappaport ([email protected]) and may consist of a detailed abstract or introduction, or an initial draft.  The topic can be anything having to do with originalism (in a positive, negative or neutral light).  A "work-in-progress" is one that will not be published in final form prior to the date of the conference.

Matthew Waxman on Daniel Webster and Bird PoopMichael Ramsey

At Lawfare, Matthew C. Waxman (Columbia): Daniel Webster, War Powers and Bird$h*t.  From the introduction: 

In the course of researching a book, I’ve come across many episodes that Benjamin Wittes and I like to call “Weird War Powers $h*t.” One of my favorites is a story about American constitutional war powers and actual $h*t. It’s a story about very expensive bird-$h*t, or guano, and how one of the 19th century’s most important thinkers on war powers nearly stumbled the nation, figuratively speaking, into a giant pile of it.

Daniel Webster and War Powers

Daniel Webster was one of the 19th century’s greatest lawyers, legislators, orators and diplomats, including serving in the House and the Senate and twice as secretary of state. Throughout his service in both political branches, he staked out strong positions that only Congress constitutionally may take the country to war. As a senator in the mid-1830s, he even opposed as unconstitutional a bill to grant President Andrew Jackson the option to engage in military reprisals against French property and to grant Jackson funds to spend, at his discretion, on military defenses, arguing that these were impermissibly open-ended delegations of Congress’s war-making powers. In the Mexican-American War, Webster railed against President James Polk for waging unconstitutional war, alleging that Polk manufactured a military crisis and obtained Congress’s war declaration deceitfully. Besides the usual argument for procedurally constipating war initiation, Webster argued that, in conflict, Congress ought to exercise control over war aims.

Later as secretary of state (1841-1843 and 1850-1852), Webster maintained his position of congressional primacy on going to war. However, as the nation’s top diplomat, he also believed that the president had expansive powers over American foreign policy and responsibilities to protect American interests and citizens abroad, and he viewed gunboat diplomacy as an important tool. The strategic demands of territorial and commercial expansion during his service in the John Tyler and Millard Fillmore administrations therefore created line-drawing problems. A recurring challenge was how to project military power, including threats of force that might escalate or set the United States on a path toward conflict, without stepping over the boundary of Congress’s exclusive war powers. ...

Randy Beck: TransUnion, Vermont Agency and Statutory Damages Under Article IIIMichael Ramsey

Randy Beck (University of Georgia School of Law) has posted TransUnion, Vermont Agency and Statutory Damages Under Article III (50 pages) on SSRN.  Here is the abstract:

The Supreme Court concluded in TransUnion LLC v. Ramirez that a plaintiff may not sue to collect statutory damages under a statute like the Fair Credit Reporting Act (FCRA) simply because the defendant violated a right Congress conferred on the plaintiff. Instead, Article III requires the plaintiff to show that the statutory violation resulted in a “concrete” injury with “a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” The TransUnion Court made no effort to explain how its conclusion could be reconciled with Vermont Agency of Natural Resources v. United States ex rel. Stevens, where the Court unanimously ruled that Congress may authorize a private qui tam informer to sue for statutory penalties based on a violation of duties owed to the public, even though the informer has not suffered a particularized injury attributable to the defendant’s unlawful conduct.

The Vermont Agency Court closely examined statutes of the first Congress in light of Anglo-American legal history to find qui tam actions compatible with Article III because the framing generation understood them to be “cases and controversies” traditionally resolved through the judicial process. A comparable examination of late eighteenth century federal legislation undermines the majority’s decision in TransUnion, showing that Congress may authorize collection of statutory damages by private litigants who claim no harm beyond the legal injury associated with the defendant’s violation of a statutory duty owed to the plaintiff.

Statutory damages are a modern version of statutory forfeitures available under framing era penal statutes. Blackstone explains that a defendant who violates a penal statute must pay a statutory forfeiture to whoever the legislature specifies, whether an aggrieved party, a public official or a qui tam informer. Examination of early federal statutes shows that, just as Congress awarded forfeitures to uninjured qui tam informers, Congress likewise directed forfeitures to aggrieved parties whose only injury was the defendant’s violation of an individual right protected by statute. By claiming authority to determine whether a plaintiff has suffered a “concrete” or “real” injury warranting litigation to recover statutory damages, the TransUnion Court inverted the framing era relationship between legislatures and courts.

Donald Elliott: The On-Going Judicial Reconsideration of the Administrative State in the U.S.Michael Ramsey

E. Donald Elliott (Antonin Scalia Law School; Yale Law School) has posted The On-Going Judicial Reconsideration of the Administrative State in the U.S. (Constitutional Discourse, July 20, 2023) (12 pages) on SSRN. Here is the abstract:

This paper describes the on-going reconsideration of the Administrative State by courts in the U.S. It describes why the re-evaluation is occurring now and reviews the grounds being considered in pending cases, including the delegation doctrine, the unitary executive theory, the Chevron doctrine. It proposes a "spirit of the Constitution" approach based on McCullough v. Maryland.

And from the article (footnotes omitted):

The “spirit of the Constitution” test would require courts to consider more broadly whether the structure and functions of new institutions such as administrative agencies are consistent with the overall design features of the Constitution. For example, one of the most thoughtful drafters of the Constitution, James Madison, opined that a key feature of our Constitution is the separation of powers into three branches: ““The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.”

However, today many administrative agencies exercise all three kinds of power,
legislative, executive and judicial. No specific text in the Constitution prohibits this design, although it is inconsistent with the overall design of the Constitution itself which divides power to protect liberty. Many of the architects of the administrative state such as Woodrow Wilson and James Landis thought that separation of powers was an inefficient relic and proudly proclaimed that administrative agencies should exercise all three kinds of powers.

It remains to be seen whether the on-going reconsideration of the structure of the
administrative state will go so far as to require that administrative powers must be consistent with the overall design features immanent in the Constitution, what Chief Justice Marshall called “the spirit of the Constitution,” or merely its specific provisions.

My view is that the specific provisions should be enforced and no spirit is required, but a number of features of the administrative state are suspect under the specific provisions.  The article posits that "many administrative agencies exercise all three kinds of power, legislative, executive and judicial [and] [n]o specific text in the Constitution prohibits this design."  I disagree. If we take seriously the propositions from the vesting clauses that the legislative powers therein granted are vested in Congress, that the executive power is vested in the President, and that the judicial power is vested in life-tenured federal courts, I think the administrative state would be adequately contained.

John Vlahoplus on the Presidency and Section 3Michael Ramsey

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.

Hadley Arkes Responds to Reviews of "Mere Natural Law"Michael Ramsey

At Law & Liberty, Hadley Arkes: Natural Law and Originalism—What Is the Argument Really About?  From the introduction:

I want to thank my friend, John McGinnis, for the good things he had to say about my new book, Mere Natural Law. But in his more critical commentary he seemed to be talking about some book other than the one I wrote.

For one thing, readers might have been left wondering about the meaning of that unusual title, Mere Natural Law, drawing something from C.S Lewis. It was pointing to an understanding of natural law grounded in the precepts of common sense that ordinary men readily grasp. It was not a “theory” or a body of grand sentiments hovering in the sky. That title was reflected then in the argument running through the book. John McGinnis, as savvy as I’ve known to be, never explained anything about that argument connecting the chapters, and reflected in the title. That became the source of an ideological filter, I’m afraid, that distorted the account he gave of the book. 

But let me clear away some ground first.

McGinnis calls me again to the virtues contained in the very structure of our Constitution, the virtues explained further by him and Michael Rappaport in their work on the “supermajoritarian” Constitution. I don’t see how it passed his notice that I have defended and celebrated that structure of the Constitution, in this book and in everything else I’ve written. I’ve spent a career teaching the writings of the American Founding, and I don’t have to be enjoined to respect the Constitution as it was written.

The argument in the book was not against Originalism, but a truncated Originalism, which detaches the Constitution from the moral ground of the Constitution, as the leading Founders understood it. John Marshall, James Wilson, and Alexander Hamilton had a remarkable knack of tracing their judgments back to those axioms or anchoring truths that the framers had drawn upon in shaping the Constitution. They did that in the course of applying the Constitution to the issues and cases coming before them. They certainly did not think that when a judge departed, as they did, from the text of the Constitution that he was merely “looking inside himself,” that he was drawing merely on his most “personal” preferences. Plainly, they did not hold to the heresy that there were no moral truths outside the text of the Constitution. ...

And at National Review, Hadley Arkes: The Nature of the Law - A Reply to J. Joel Alicea.  From the introduction:

How can I complain of Joel Alicea? I’ve known him for a long while, and he is characteristically cordial, even gracious — as he credits my writing, and my charm — in his review (“Anchoring Originalism,” July 10) of my book Mere Natural Law. I think, though, that he gave the readers a serious misreading of the book, and I hope that my own corrective will be received in turn in a cordial way.

Alicea touches the main line of my argument in the book — before he takes a deft turn and leads the reader away from the center of the argument. Quoting me, he aptly says that I take as “the very ground of Natural Law” and “the principles that govern our judgments in Natural Law” those precepts of common sense that can be grasped by ordinary folk. Alexander Hamilton caught the core of the matter in Federalist No. 31, where he wrote of those “primary truths, or first principles, upon which all subsequent reasoning must depend.” These are things to be grasped per se nota, as true in themselves. One of the things grasped in that way is the “law of contradiction,” that two contradictory propositions cannot both be true. And what is grasped in the same way, by ordinary men, is the axiom that was taken by Immanuel Kant, Thomas Reid, and Thomas Aquinas as the first principle of all moral and legal judgment: that it makes no sense to cast moral judgments of praise or blame on people for acts they were powerless to effect.

That axiom not only underlies the insanity defense; it may explain finally the deep wrong in principle of racial discrimination. More than that, the implications springing from this axiom run widely through our laws. James Wilson and John Marshall followed Hamilton in recognizing axioms of this kind as those “primary” truths that form the ground of our law. The critical point here is that these are not theories. It’s not a theory that we may not hold people responsible for acts they were powerless to effect, any more than it’s a theory that two contradictory propositions both cannot be true. What Alicea seems to miss is that a system of law drawn from axioms of this kind cannot be merely a theory of natural law, but the real thing. ...

Professor Arkes' book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution (Simon & Schuster 2023).

Section 3 of the 14th Amendment Has Never Barred Anyone from Serving as PresidentDavid Weisberg

Section 3 of the 14th Amendment in relevant part provides:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

Some scholars argue that Section 3 bars Donald Trump from again serving as president because, having taken the presidential oath, he “engaged in insurrection” by unlawfully conspiring to overturn the legitimate result of the 2020 presidential election.  (Relevant links are here and here.)  Even accepting what I believe is the false premise that Trump “engaged in insurrection,” he is not barred.  Section 3 never barred anyone—not Robert E. Lee, and not Donald Trump—from serving as president.  Arguments to the contrary suffer from two fatal flaws.

I

First, the proponents of those arguments (collectively, the “proponents”) make the textual mistake of ignoring the profound significance of the absence of the specific terms “President or Vice-President” at the head of the list of barred offices.  Context matters.  It is, e.g., one thing to debate whether, in Art. I, Sec. 3, Cl. 6, which describes “Judgment in Cases of Impeachment,” the phrase “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” does or does not include the presidency.  That is a context in which no specific offices are listed. 

But Section 3 is a radically different context.  It begins by specifically listing the offices of Senator, Representative, and presidential elector, and never explicitly mentions the presidency or vice presidency.  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.

In his opinion for the Court in Whitman v. American Trucking Associations, 531 US 457, 468 (2001), Justice Scalia famously observed: “Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”  But with regard to Section 3, the proponents in effect insist on concealing not one, but two elephants—both the presidency and the vice presidency—in the mousehole of “any office, civil or military, under the United States[.]” Again, in a context that begins with a list of specific federal elective offices and omits the presidency and the vice presidency, no reasonable person would believe that those two enormously important offices were deliberately hidden in that tiny and obscure mousehole.  Rather, every reasonable person would conclude that those two offices were never intended to be barred offices.

Two of the proponents, Profs. Baude and Paulsen, rely on a congressional debate concerning the proposed Section 3.  That debate actually cuts against their position.  Senator Reverdy Johnson questioned whether Section 3 bars disqualified persons from being elected to the presidency or vice presidency.  Senator Morrill responded by referring to the words “or hold any office, civil or military, under the United States,” and Senator Johnson then replied: “Perhaps I am wrong as to the exclusion from the presidency; no doubt I am; but I was misled by noticing the special exclusion in the case of Senators and Representatives.”

This smidgen of legislative history has, first of all, every infirmity that Justice Scalia exposed in the essay on Legislative History that is included in his book, “A Matter of Interpretation” (Princeton University Press, 1997).  Senators Morrill and Johnson are only two senators; did the rest of the two-thirds of the Senate hear that smidgen and agree with Senator Morrill?  Did two-thirds of the House of Representatives hear that smidgen of senatorial debate?  Were the hundreds of state legislators in three-fourths of the States who voted to adopt Section 3 also aware of Senator Morrill’s gloss?  These questions answer themselves.  The brief Morrill/Johnson colloquy provides no real support for the proponents’ position. 

Moreover, that colloquy actually undercuts their position.  Consider all the hundreds of legislators, in both Congress and state legislatures, whose affirmative votes were necessary to adopt the Fourteenth Amendment.  It is, I submit, overwhelmingly likely that, if those legislators considered Section 3 at all, they had exactly the same impression that Senator Johnson had.  That is, because Section 3 does not specifically list the presidency and vice presidency, while it does assert, in Senator Johnson’s words, a “special exclusion in the case of Senators and Representatives,” it is reasonable to conclude, as Senator Johnson did conclude, that the presidency and vice presidency are not barred offices.  Perhaps Senator Morrill changed Senator Johnson’s mind (although that is debatable), but who would have changed the minds of the hundreds of other legislators who voted to adopt Section 3? 

Because the proponents begin with the conviction that elephants are indeed very frequently tucked away in cozy mouseholes, they do not even consider any of these issues.   

II

The proponents mistaken textual interpretation of Section 3 prevents them from even considering the possibility that the failure to include the presidency and the vice presidency in the list of barred offices might have been deliberate.  For that reason, they have essentially blinded themselves to the very obvious policy consideration underlying what, I submit, was a deliberate and very rational decision to exclude the presidency and vice presidency from the list of barred offices.  

Elections for president and vice president are nation-wide in scope.  Federal electors are of course elected in individual States, but the president and vice president are elected only after tallying the electors’ votes from every State (I believe there were no districts or possessions with federal electors in 1868) all together.  In contrast, the federal offices specifically barred in Section 3—senators, representatives, and electors—all entail elections limited to individual States. 

I submit that the specifically barred federal offices all entail elections in individual States simply because there was a concern that unreconstructed rebel voters might constitute majorities in individual States that had formerly been in the Confederacy.  (And it is of course also true that barred elective offices in any state government would entail elections limited to a single State.)  But, in contrast, it was a mathematical certainty that the national electorate would not be so constituted—that is, the national electorate could not have a majority of unreconstructed rebel voters. 

In the 1860 census, the aggregated populations of the 22 States that would remain in the Union approximated 23 million, while the future 11 Confederate States had populations of 9 million, which included 3.5 million enslaved persons.  If one assumes that emancipated men and women would have Union sentiments, that means that in the late 1860s the citizenry, and presumably the qualified voters in that citizenry, would favor Union sentiments over Confederate sentiments by a ratio of almost 5 to 1 (26.5 divided by 5.5 equals 4.818).

If Robert E. Lee had run for the presidency, he could not have been elected only by the voters in States that had joined the Confederacy.  Even with distortions from the electoral college, someone like Lee could win only if he received a large majority of his votes from voters in States outside the defunct Confederacy.  But, as noted, the national electorate would have been overwhelming Unionist, not Confederate, in sentiment (by a ratio of almost 5 to 1), and all those voters would have been as fully informed as anyone could be regarding General Lee’s role in the Civil War. 

Thus, unlike the case of elections in individual States, there would have been no reason to deny voters an entirely free choice for president and vice president, because Union-favoring voters would vastly outnumber Confederate-favoring voters.  In a nation-wide election, there was no risk that unreconstructed rebel voters could pick the winners.  And that is why, on its very face, Section 3 never barred anyone from serving as president or vice president.

III

In conclusion, I would simply repeat that, if it was understood that the presidency and vice presidency would be barred offices under Section 3, every reasonable person, without exception and including the proponents, would expect to find:

No person shall be President or Vice-President, or a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office …, etc.

I would ask every proponent of the opposing view to explain why Section 3 is not written in exactly those terms.  

Kurt Lash: The Federalist and the Fourteenth AmendmentMichael Ramsey

Kurt Lash (University of Richmond School of Law) has posted The Federalist and the Fourteenth Amendment—Publius in Antebellum Public Debate, 1788–1860 (Brigham Young University Law Review, Vol. 48, No. 6, 2023) (39 pages) on SSRN.  Here is the abstract:

The Federalist Papers occupy a unique place among historical discussions of the federal Constitution. Internationally famous as a work of political science, the essays of “Publius” have particular importance to American constitutional theorists seeking insights into the historical meaning of the federal Constitution. The Supreme Court has cited the Federalist Papers in hundreds of cases, and for more than two hundred years every generation of constitutional scholars have debated and discussed the essays in countless books and articles. Despite their fame, modern scholars often question whether the Federalist Papers should be viewed as reliable guides to the original understanding of the Constitution. What scholars have not previously addressed, however, is the potential impact of the Federalist Papers on later constitutional development, in particular the framing and ratification of the Thirteenth, Fourteenth and Fifteenth Amendments.

This article takes the first step towards remedying this omission. The first of a two-part investigation of the role of the Federalist Papers in Constitutional Reconstruction, this essay presents the results of an empirical investigation of references to the Federalist Papers in antebellum and early Reconstruction public discussion and debate. The data reveal a robust and growing use of the Federalist Papers, both north and south, as the country spiraled towards civil war. This evidence suggests that the essays of Publius had a far great impact on antebellum Republican constitutional theory than legal historians have previously recognized.