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Wednesday, January 20, 2021

Future Avenues of Section Three Research

Josh Blackman and Seth Tillman have written a thoughtful post laying out one of the issues that will be debated if Section Three of the Fourteenth Amendment is ever invoked against ex-President Trump:  Is the President an "officer of the United States" as required by Section Three?

I want to suggest that there are three sources particular to Section Three that should receive closer scrutiny. One is what, if anything, members of the 39th Congress said about Section Three on the campaign trail in 1866. People look at that campaign to understand the original public meaning of Section One. I used one speech that John Bingham gave on the stump in my draft paper, but that was because I retained a copy of the speech from my research on Bingham. There are probably many more speeches from leading drafters or ratifiers of the Fourteenth Amendment that address Section Three. I'm confident that I looked through the debates in Congress thoroughly, but I did not do so for what occurred outside of Congress.

Second, what did members of Congress say about Section Three when amnesty was debated in 1872? This is not as useful because they were four years removed from ratification. Still, people do use what Congress said in this period of Reconstruction to construe the Fourteenth Amendment. And the debate on amnesty in 1872 was much longer than the debate on Section Three in 1866. I went through those discussions pretty carefully, but I'm not as sure that I squeezed out all of the juice that is there.

Third, Pennsylvania is the only state that kept detailed records of its ratification debates on the Fourteenth Amendment. Perhaps there is Section Three material in those records.

I hope people start diving in so that we can learn more. If I learn more, then I'll be sure to share. 

Posted by Gerard Magliocca on January 20, 2021 at 09:46 PM | Permalink


Did y'all know there's a SCOTUS case (still active and cited today) which states if a potentially unconstitutional law reaches a certain level of enactment, it's no longer worth determining whether or not the law is unconstitutional?

Posted by: thegreatdisappointment | Jan 21, 2021 1:45:04 PM

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