[This post is co-authored with Professor Seth Barrett Tillman]
In our view, the phrase “Officers of the United States” does not refer to the President. This was true in 1788, was true in 1868, and is true today. A common refrain from Professor Mark Graber and others is that we have pointed to no one who publicly stated that view “within a decade” of the Fourteenth Amendment’s ratification. Graber has also narrowed that window to the 1860s. He wrote, “No evidence exists that any member of Congress, member of a state legislature, political activist, journalist, or hopeless crank during the 1860s thought a president was not an officer of the United States.” Is the relevant time frame from 1858 to 1878 (i.e., a decade before and after ratification), from 1860-1870 (i.e., the decade of ratification), or from 1866 to 1868 (i.e., the ratification period)? Relatedly, Michael Stern wrote “there is no record of anyone else, eminent thinker or otherwise, saying” that the President does not hold an Office under the United States “in the Constitution’s first two centuries.” We have long faced shifting evidentiary targets, since January 6, 2021 and since the beginning of Section 3 litigation. Those who have made and relied upon these and similar categorical empirical claims took a risk: that no such statement actually existed. They made a falsifiable claim, and here in this post, we will show that the claim is false. We discussed these articles and issues in our recently-filed amicus brief before the U.S. Supreme Court.
In April 1868, the Louisville Daily Journal published a series of articles contending the President is not an “Officer of the United States” as that phrase is used in the Constitution. Albeit, these newspaper articles did not address the meaning of that phrase with respect to Section 3. Still, we submit that the text of the Fourteenth Amendment would have been well-familiar to the public during this pivotal juncture. At the time, state ratification of the Fourteenth Amendment remained ongoing. Still, even timing aside, these newspaper articles are instructive for the Section 3 analysis. Why? The newspaper articles used the same mode of analysis that we have repeatedly used to understand the meaning of the phrase “Officers of the United States”: considering how the phrase “Officer of the United States” is used in the Commissions Clause and the Impeachment Clause; established practices of the government since 1788; parsing the records from the Blount impeachment trial; relying on analysis from Justice Story’s Commentaries on the Constitution; and more.
To be sure, in 1868, as today, there were debates about whether the President is an “Officer of the United States.” Indeed, the Louisville, Kentucky newspaper responds to a Cincinnati, Ohio newspaper article that took the opposite position. In short, the same debates being held today about textualism and purposivism, and how those methodologies should be applied to the Constitution’s “officer of the United States”-language, were also held 150 years ago.
Here, we give all credit to John Connolly, who located these Louisville Daily Journal sources, along with several related contemporaneous newspaper articles. Again, these statements were made in a newspaper from Louisville (where Blackman fondly lived for a year during his clerkship). We have no reason to believe these statements were not understood. We have no reason to believe that these views were rejected by all, or even most citizens, as less than reasonable. And we have no reason to suspect that the reasoning here was so obscure that similar statements do not appear elsewhere. How few or how many such similar statements might exist in other sources is yet to be published.
Louisville Daily Journal, April 11, 1868, Page 1
The first of the three articles in the Louisville Daily Journal was published on Saturday, April 11, 1868. The article asked and answered the threshold question:
What is an officer of the United States? Is he not one who derives his appointment from the government of the United States and not from the government or people of a state?
Here the article invoked the same reasoning used by Chief Justice Marshall in United States v. Maurice. Marshall, while riding circuit, limited the construction of the phrase “officer of the United States” to “an individual [who] is appointed by government.” 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747).
The April 11, 1868 article did not discuss whether the President is an “Officer of the United States.” But the author’s reasoning, at this early juncture, would support the conclusion that the President is not an “Officer of the United States.” Presidents are not appointed; they are elected by electors who “vote by ballot,” and, in a contingency election, they are elected by state delegations in the House, which “choose by ballot.” The Constitution studiously avoids the language of “appointment” in regard to the election of the President in Article II and under the Constitution’s revised Twelfth-Amendment presidential elections procedures.
The Louisville Daily Journal also makes an argument based on historical practice. Here, the author pointed to the Commissions Clause:
The Third section of the second article declares that the President ‘shall commission all the officers of the United States.’ Of course nobody claims that the President has a right to commission a member of the Senate or of the House of Representatives. . . . for the president is bound to ‘commission all the officers of the United States.’ This we think is decisive. It appears to us to end the question.
About nine days earlier, another publication made a similar argument. On April 2, 1868, the Washington National Intelligencer explained:
A final and decisive test of an “officer of the United States,” is afforded by the Constitution itself. (emphasis added). It is this, that “the President shall commission all the officers of the United States.” But the President never commissions a Senator nor Representative, nor the President pro tempore of the Senate.
There is no tradition of the President ever commissioning a member of Congress. And the Constitution provides that the President “shall commission all the officers of the United States.” In light of this history, it stands to reason that members of Congress are not “Officers of the United States.” Likewise, there is no tradition of the President commissioning himself or his successor. If we extend the author’s reasoning—i.e., relying on the President’s duty to commission all the officers of the United States—it would also follow that the President is not an “Officer of the United States.”
But what about the Speaker of the House and Senate President Pro Tempore. The Constitution specifically refers to them as officers—that is, an officer of each house of Congress. Still, the author denies that they would be “officers of the United States.” Again, we can extend the author’s logic. In the original Constitution, the president is nowhere described as an “officer;” but, the presidency is characterized as an “office.” Thus even if the presidency is an “officer” because he holds an “office,” it does not follow that he is an “officer of the United States.”
Louisville Daily Journal, April 15, 1868, at 1:
Four days later, on April 15, 1868, the Louisville Daily Journal published an article titled, A Raking Shot at Some Accepted Doctrine. This article appears to be a response to another article from the Commercial, a Cincinnati newspaper. The Louisville Daily Journal begins by stating that others contend as “accepted doctrine” that “the President of the United States is an officer of the United States.” In 1868, and today, there was disagreement and debate about whether the President is an “Officer of the United States.”
The Daily Journal explains, those who hold the “accepted” view would “put the burden of proof on him who disputes them.” In 1868, and today, those who insist that the President is an “Officer of the United States” would place the burden on those who think otherwise. Then, and now, we think the burden should be on those who argue that the President is an “Officer of the United States.”
The author of the Louisville Daily Journal article “propose[s] to assume” this “burden,” and “propose[s] to take a raking shot at the lot.” A raking shot refers to a shot fired from a sharp, or acute angle. The Louisville Daily Journal‘s analysis has four primary components.
First, the Louisville Daily Journal repeats its discussion from the April 11 article. That piece explained that an “Officer of the United States” is appointed by the federal government:
And first of the first. Is the President an officer of the United States? What is an officer of the United States? This question we asked and answered in the Journal of Saturday [April 11, 1868]. Our answer is that an officer of the United States is one who derives his appointment from the government of the United States; and the answer, we think, is unanswerable. It is generally admitted. It is admitted at any rate by all who hold that Senators and Representatives are not officers of the United States; for it is the foundation of that position. And this admission is quite enough for our purpose.
Second, the Louisville Daily Journal explains that the President, like members of Congress, are not appointed by the federal government Instead, the presidency is filled by action of “the several states, which, pursuant to the Constitution, appoint electors who elect him. He is therefore not an officer of the United States.” (emphases added)
Again, the Constitution repeatedly refers to the electors who elect or vote for the President. Indeed, the root of the word electors is elect. Each State provides a process which ultimately appoints the state’s electors, and they, the electors of the several states, collectively, in turn, elect the President. Therefore, the Louisville Daily Journal concluded, the President is not an “Officer of the United States.” More importantly, the position of President is not filled by action of the “government” of the United States. Instead, it is filled by action of voters: either electors or, in a contingency election, by state-wide delegations House delegations.
Third, the Louisville Daily Journal makes a textualist argument—or, more precisely, an intra-textualist argument. To determine whether the President is an “Officer of the United States,” the author analyzed another provision of the Constitution that uses the phrase “Officers of the United States.” Specifically, the author considered the Impeachment Clause:
This is the argument. And we conceive that it is made impregnable by the language of the Constitution. Says the fourth section of the second article: ‘the President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.’ Herein, be it noted, the President and Vice-President are not included among ‘civil officers of the United States,’ but, on the contrary, are distinguished from them, the language of the Constitution being, ‘The President, Vice-President, and all civil officers of the United States,’ not ‘the President, Vice-President, and all other civil officers of the United States.’ The language implies that the President and Vice-President are not officers of the United States. It fairly admits of no other construction.
The text refers to “all civil officers of the United States,” not “all other civil officers of the United States.” The President, who is expressly enumerated, is not included in this broad category of “officers of the United States.” (And we have repeatedly addressed, without any rebuttal, the novel argument that the President is a military officer—he is a civilian in charge of the military.) The Louisville Daily Journal found this argument, based on the Impeachment Clause, “impregnable,” and it asserted that the clause’s text “fairly admits of no other construction.” We agree. Indeed, the Denver trial court found this argument persuasive, in concluding that the President was not an “Officer of the United States.” The Supreme Court of Colorado did not even mention the text of the impeachment clause. (That court did cite the Impeachment Disqualification Clause, which we will address below.) Rather, the four-member majority ignored plain textual evidence to the contrary. By contrast, the Denver trial court carefully analyzed this textual evidence.
Fourth, the Louisville Daily Journal turns to Justice Joseph Story’s Commentaries on the Constitution:
In the words of Mr. Justice Story, [the Impeachment Clause] “does not even affect to consider them officers of the United States.” See section 793 of Story’s Commentaries. The argument is thus supported by the authority of the most celebrated commentator on the Constitution as well as by the language of the Constitution itself. Thus supported, we have it. We in fact do not propose to elaborate the argument on any of the points under notice.
Story took the position that the President is not an “Officer of the United States.” It is right there in black-and-white. And it was repeated by a newspaper in April 1868, several months before the Fourteenth Amendment’s ratification. This was not an elite legal publication intended for a small or specialized readership. It was a newspaper from Louisville, Kentucky. Story’s writings were so ingrained that authors could cite specific sections to prove the point. There is no secret code. Yet, the Colorado Supreme Court, along with more than a few well known scholars, have ignored Justice Story.
More importantly, the April 15 Louisville Daily Journal article develops its position using public reason—it advances analytic arguments and evidence. It does not merely recite its conclusions or expectations. It reads like a fully fleshed-out Marshallian judicial opinion. Indeed, its understanding of “officers of the United States” flows directly from Chief Justice Marshall’s seminal opinion in U.S. v. Maurice. What we see here is a continuous analytic intellectual tradition, relying on the text of the Constitution, supported by the practice of the government since its inception, and expounded upon by Marshall, Story, and newspapers during ratification of the Fourteenth Amendment.
Cincinnati Commercial, April 18, 1868, at 4:
On April 18, the Cincinnati Commercial responded to the Louisville Daily Journal.
First, it addressed the argument based on the Commissions Clause:
Those who are splitting constitutional hairs to demonstrate that the Vice President and members of Congress are not officers of the United States because they are not commissioned by the President, are driven to the absurd conclusion that the President himself is not such an officer.
But what about long standing practice under the Commissions Clause? Does the Commercial address the fact that the President has never commissioned himself, his successor, any Vice President, or any members of Congress? No, the Commercial does not address such facts. In 1868, and today, those who contend the President is an “Officer of the United States” use the absurd charge as a cloak for dispensing with analytic arguments and actual evidence.
In a post criticizing our position, Professor Ilya Somin managed to use the word “absurd” five times in the span of five paragraphs. Scalia and Garner, and leading textualist scholars, tell us that the absurdity doctrine is not based on what any single judge or law professor thinks is absurd, but is instead based on a reasonable person standard. Somin also argued that the President commissions himself by taking his oath of office. There was no evidence of this position in 1788, in 1868, and no evidence of this position today. As any federal judge can tell you, the signed commission comes before the oath of office. William Marbury learned that lesson the hard way. In 1801, on the eve of inauguration, President John Adams signed a commission for Marbury, but he did not commission himself or his successor, President Thomas Jefferson. Yet critics keep calling our position absurd.
The Commercial continued. “He [the President] derives his appointment,’ says one of these triflers, ‘from the several States.’ And, pray, what are the several States under the Constitution, but the United States.” Triflers. You, the reader, can see: hyperbole in debates about “Officers of the United States” is not new. Such hyperbole was unreasoned in 1868, and it remains unreasoned today.
The Commercial did not discuss the Louisville Daily Journal’s analysis of the Impeachment Clause. If the Commercial would not split “constitutional hairs,” then members of Congress would be “Officers of the United States,” and would be subject to impeachment. The Commercial does not even acknowledge the Blount impeachment trial. By contrast, the Louisville Daily Journal cited the specific section from Story’s Commentaries about the Blount proceedings. Which approach is reasoned? Which approach is a naked assertion of intuitions?
The Commercial did discuss the Impeachment Disqualification Clause—the same provision the Colorado Supreme Court cited. That move is a favorite of office maximalists. The Commercial wrote:
Another bright discovery has been made. The Constitution declares that judgment, ‘in cases of impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.’ The President not being an officer of the United States, the conclusion is reached that his impeachment can not disqualify him for holding the Presidency, if reelected.
Both in 1868, and today, critics charge that of course the presidency is an “Office . . . under the United States,” because it would of course be absurd if an impeached, convicted, and disqualified President could run for re-election and hold that office should he prevail. Three points in response.
First, the phrase “Officers of the United States” is textually distinct from “Office . . . under the United States.” Those who refuse to split hairs see these phrases as identical. But that conclusion is not self-evident from the text. It is a conclusion that must be proven.
Second, why are the Commercial and the Colorado Supreme Court so certain that a disqualification must permanently disbar a person from holding elected federal positions? Is it absurd to suggest that the Constitution’s bar on disqualification extends to appointed positions and that the people could decide that an impeachment and disqualification were unjust, and that re-election is the proper remedy? Why should a fleeting majority in the Senate take away the public’s ability to return a person to elected federal positions. Disqualification, after an impeachment conviction, only takes a simple majority vote. Indeed, ambitious Senators, with eyes on the White House, may see a political value in knocking out a potential candidate in a future race for the presidency.
Third, our position is not novel. The April 15 issue of the Louisville Daily Journal observed that there are “several very interesting corollaries” from its textualist position. For example, “a judgment in the case of his impeachment cannot disqualify [the President] from holding the Presidency if re-elected.” This author reached this conclusion based on the text of the Constitution, and not some abstract position about whether it would be undesirable for a disqualified person to be elected President. Again, the editor of this newspaper would have concluded that if Johnson was impeached, convicted, and disqualified, he could have been re-elected in 1872 or in some other subsequent presidential election. Those who claim our position is “absurd” have to contend with a newspaper editor reaching this conclusion in 1868 based on the text and history of the Constitution.
Moreover, during the Blount (1797–1799) and Belknap (1876) impeachments, others made arguments similar to those made by the Louisville Daily Journal. For example, Senator Matthew Carpenter explained that the purpose of the Impeachment Disqualification Clause was to make Senate removal by impeachment effective. Absent disqualification, after the Senate removed an officer, the President could re-appoint that person to the same office or appoint that person to a different office. The purpose of the clause was to block appointments after disqualification, not to block a subsequent election. (We discussed Carpenter’s view more in depth in our post about the horrible Jefferson Davis.) Modern sensibilities, based on unsupported intuitions, have exceedingly little relevance for original public meaning originalism. Even when those intuitions are reported as contemporaneous with congressional enactment and state ratification, they carry little weight precisely because intuitions are unreasoned.
No doubt the ongoing impeachment trial of President Andrew Johnson was on everyone’s mind. Indeed, on the very same page, the Commercial reported on the latest developments from the impeachment trial. It is not widely known that after Johnson was acquitted by the vote of a single senator, he was re-elected to the Senate by his home state of Tennessee. At least in that regard, Tennessee did not agree with the impeachment, and near-conviction of Johnson.
In 1868, and today, those who reject our position insist that they know the true path, the true interpretation of the Constitution’s text—and, here, the only possible meaning of the Impeachment Disqualification Clause. They point to no authoritative sources, and they point to no judicial decisions establishing their position. They just know. We approach this topic with an element of intellectual humility—we acknowledge that debate on these points is long standing. And where the text admits of more than one interpretation, we should resolve to allow the widest participation by candidates and voters. That is the lesson of 1788, 1868, and today. And we might add that that is part of the lesson of 1776. Justice Scalia’s admonition is evergreen: “the most important liberty [the People] asserted in the Declaration of Independence and won in the Revolution of 1776 [was] the freedom to govern themselves.”
Louisville Daily Journal, April 22, 1868, at 1:
One week later, on April 22, 1868, the Louisville Daily Journal directly responded to the April 18, 1868 article from the Cincinnati Commercial. First, the Louisville Daily Journal restates the question posed by the Commercial:
‘And pray,’ asks the Cincinnati Commercial, alluding to the doctrine that the President is not an officer of the United States because he derives his appointment from the several states, ‘what are the several States under the Constitution, but the United States?
In 1868, and today, there is a common rejoinder: if the President is not an “Officer of the United States,” what is he an officer of? A foreign country? A state?
Second, the Louisville Daily Journal responds there is a difference between the United States, a collective body, and the several constituent states.
Why, they are the several states; that is one difference. Can’t you comprehend the difference between several [states] and [U]nited [States]? . . . . The United States is a political entity . . . .the several States under the Constitution are just what they were before less the powers which form the United States.
Third, the Louisville Daily Journal reaches its conclusion. The President does not derive his appointment from the United States government. Rather, the President is elected by the electors, who are appointed by the states. Therefore, the President is not an “Officer of the United States.”
It follows that an officer who derives his appointment from the several States or from any of them is not an officer of the United States. And such an officer is the President.
To be clear, the Louisville Daily Journal does not suggest that the President is an officer of the state, or something to that effect. Rather, the Louisville Daily Journal limits the term “Officers of the United States” to those appointed by the federal government. Although the Louisville Daily Journal does not provide the specific mechanics for filling “officer of the United States”-positions, we note that such positions are filled under the auspices of Article II, Section 2, that is, the Appointments Clause and the Inferior Office Appointments Clause. This is common knowledge.
Like the April 15 article, the April 22 article, is an analytical argument, based on public reason.
We draw here only a limited conclusion about original meaning: in 1868, not all thought the President was an officer of the United States. We can draw a broader conclusion about methodology: those who argued that the President was not an “officer of the United States” used analytical arguments, based on public reason, that cited the text of the Constitution, judicial authority, established practice, persuasive commentary, and more. But those who argue that the President is an “Officer of the United States” have to disregard all of the above evidence. The Denver trial court took account of this evidence. The Colorado Supreme Court simply ignored these issues. (Those who found themselves persuaded by the Colorado Supreme Court’s cursory analysis should read the trial court’s decision, as well our amicus brief, to provide a contrast.)
Readers may say of course the Ohio newspaper is right and the Kentucky newspaper is wrong. But why? Those who say ‘of course‘ are merely relying on intuition: the results endorsed by the Ohio newspaper are consistent with intuitions of how they view the Constitution. If you favor a sober, grounded, textualist approach, in connection with arguments advanced through public reason making fully-fleshed out Marshallian exposition, then the Kentucky newspaper wins the Derby.
Here, we have shown that a newspaper in Louisville explained in 1868 that the President is not an “Officer of the United States.” The analysis cited two provisions of the Constitution. We have cited the same two provisions time and again: the Impeachment Clause and the Commissions Clause. The analysis cited, chapter and verse: Justice Story’s Commentaries, and its discussion of the Blount impeachment trial, which concluded that the President is not an “Officer of the United States.” And the Louisville newspaper made its analysis with sober reasoning based on text and history, and not hyperbolic accusations of absurdity.
The argument that everyone in 1868 thought that the President was an “Officer of the United States” is incorrect and clearly falsifiable. There were clearly some people who thought otherwise. Whether it was or was not a dominant view is a difficult question. But this position is not absurd; it is just a position that some disagree with. And some of the loudest to make the charge that Justice Story’s position is absurd fail to recognize that Story wrote behind the veil of ignorance. In 1833, when Story’s Commentaries were published, there were no obvious political distributional consequences. By contrast, modern day critics are active proponents of a particular modern-day political result. We all know this.
The Colorado Supreme Court adopted the Baude/Paulsen charge that our position is some sort of “secret code.” This charge never made much sense to us. Most codes are secret—at least for a time. But if the meaning we propose for “Officers of the United States” was or is a secret, then it is the worst-kept secret in the history of constitutional law. What we have proposed was known to Marshall, Story, the Louisville Daily Journal, and the Supreme Court in any number of majority opinions. Yet, the sort of hyperbole put forward by Baude/Paulsen has been and remains endemic in academic discussion since litigation began. Academic papers have been produced at brisk pace, and these papers made bold, novel, and hyperbolic claims. In our view, these publications cannot be trusted, because there has not been time for percolation and debate. We have illustrated that point here by falsifying the claim that circa 1866–1868, everyone believed the president is an “officer of the United States.”
Still, we do not expect to persuade our loudest or our most persistent critics. In a recent post, Professor Vikram Amar wrote, “Now there are those who challenge whether the President is an officer under [sic] the United States (although there are very few prominent academics from highly regarded institutions who take that position).” It is possible that this passage was directed at us. But we cannot be sure. Why? First, the Constitution nowhere uses the phrase “officer under the United States.” We suspect Amar meant “Officer of the United States,” but we cannot be certain. Second, as a general matter, since 2011 Tillman, and since 2016 Blackman and Tillman have been careful to take no position in regard to the scope of the phrase “office under the United State” in Section 3. And since 2021, our Section-3-related publications and amicus briefs have focused exclusively on the phrase “officer of the United States” in Section 3. So if not us, who are the academics to which Vikram Amar is referring? Professor Lessig at Harvard? Professor Lash at the University of Richmond? Professor Amar demonstrated an inability to name names, to be direct, and to quote the Constitution correctly. He did not accurately characterize the intellectual positions of those he is debating. And he offered no arguments about “Officers of the United States” based on reason, evidence, and authority—only misplaced elitist asides. Amar’s aside goes some way to show that his position about the phrase “Officer of the United States” is not part of a meaningful analytical or intellectual project. It is a good deal less. And whatever else it is, it cannot be the basis for establishing original public meaning.
Others will still not be persuaded on the merits. The goal posts have already moved from within a decade after ratification, to the 1860s, to 1866–1868. And we have met each burden. The goal posts will shift once again, and they will demand evidence that someone argued that the President was not an “Officer of the United States” for purposes of Section 3, and that this was the dominant view. As we’ve explained before, such a discussion is unlikely to exist because every President to that point (and, indeed, up until Trump) had held some other government position covered by Section 3. They demand a needle in a haystack that doesn’t exist. And they know or should know that there is no reason for that needle to exist.
We think this rejoinder clarifies the narrow-focus of these critics’ approach. These critics believe that Section 3 must be reviewed entirely by what was said and done about that provision in the period between 1866 and 1868. These critics believe that the eight decades of text, history, and tradition that preceded 1868 are not important. (It is no surprise that the Colorado Supreme Court majority didn’t even mention the Impeachment Clause or the Commissions Clause.) These critics believe that any evidence contrary to their intuitions is irrelevant. Indeed, anyone who held a position contrary to their intuitions held an absurd position. Let’s not split constitutional hairs when we are debating whether to disqualify the leading presidential candidate from the ballot! Does any original public meaning originalist actually endorse this myopic, intentionalist approach in any other context? Has the three decades of debates about new originalism taught us nothing?
But what about their burden? Have they shown any Framer or Ratifier who argued that the President is an “Officer of the United States” for purposes of Section 3? No. The most the challengers have demonstrated is a colloquy in the Senate to support the position that the presidency is an “Office . . . under the United States,” and a report by a five-member commission, which adopted a position from the Blount trial that there is no difference between an “Officer of the United States” and an “Office . . . under the United States.” From these two pieces of legislative history, they form a syllogism: (1) the Presidency is an “Office . . . under the United States”; (2) there is no difference between an “Officer of the United States” and an “Office . . . under the United States”; (3) therefore, the President is an “Officer of the United States.”
The first and second premises are not self-evident, and are contradicted by much evidence we have put forward. We have some new evidence regarding the first premise. The Succession Clause provides that Congress can declare “what Officer’ can act as President in the event of a vacancy. That provision refers to an “Officer,” not an “Officer of the United States” or an “Office . . . under the United States.” Around the same time that the Louisville Daily Journal and the Cincinnati Commercial were debating who was an “Officer of the United States,” another Ohio newspaper put forward a careful textual analysis concluding that there was a difference between the Constitution’s different references to “offices” and “officers.” On April 15, 1868, the Cincinnati Daily Gazette observed that the Succession Clause uses the word “officer,” and not the phrase “officer of the United States.” The Cincinnati Daily Gazette explained that the former category (i.e., “officer”) is a wider category than the latter (i.e., “officer of the United States”). The former extends to “officers of the United States” and also includes, among other positions, the legislative or presiding officers of each house of Congress—the Speaker of the House and the Senate President Pro Tempore. That is, the category of “officers” in the Succession Clause extends to “any officer under the Constitution and law of the United States.” We read the word “Officer” in the Succession Clause in a similar fashion.
Furthermore, the Cincinnati Daily Gazette article makes another textual argument. Article VI refers to “executive and judicial officers . . . of the United States,” which leaves the implication that legislative officers also exist. Again, there is no secret code which was invented by Blackman and Tillman in 2008, 2016, or 2021. These intellectual positions about the scope of the Constitution’s “office”- and “officer”-language were recognized in 1788 and 1868, and it is no surprise that the same positions should be advanced today.
But even if there is decisive evidence for the first two premises, a substantial burden still needs to be satisfied to reach the third conclusion—a conclusion which would restrict the right of the people to govern themselves. The challengers have not met this burden. Not even close.