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. 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 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. 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. 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. In 1868, as today, there were debates about whether the President is an “Officer of the United States.” 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. 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: The article invoked the reasoning used by Chief Justice Marshall in United States v. Maurice. 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.” About nine days earlier, another publication made a similar argument. On April 2, 1868, the Washington National Intelligencer explained: There is no tradition of the President ever commissioning a member of Congress. In light of this history, it stands to reason that members of Congress are not “Officers of the United States.” The Louisville Daily Journal also makes an argument based on historical practice. 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 author of the Louisville Daily Journal article “propose[s] to assume” this “burden,” and “propose[s] to take a raking shot at the lot.” Second, the Louisville Daily Journal explains that the President, like members of Congress, are not appointed by the federal government. 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.” Therefore, the Louisville Daily Journal concluded, the President is not an “Officer of the United States.”

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