On December 6, the Colorado Supreme Court had oral argument in Griswold v. Anderson. In this case, a number of Colorado voters asked the Court to order the Colorado Secretary of State to remove Trump from the primary ballot. The trial court adopted our intellectual position: that the President is not an “Officer of the United States,” and therefore, the President is not subject to Section 3 of the Fourteenth Amendment. We did not file an amicus brief with the trial court. Our trial court’s decision was appealed directly to the Colorado Supreme Court, and we did file an amicus brief before that court. Our brief argued that Section 3 requires federal enforcement legislation, and that the President is not an “Officer of the United States” as that phrase is used in the Constitution of 1788 and Section 3. In an earlier post, we analyzed several aspects of oral argument with regard to whether the president is covered by Section 3—that is, “Is the president an ‘Officer of the United States’?” as that phrase is used in Section 3’s triggering or jurisdictional clause. But we did not discuss the disqualification element of Section 3. Those who are disqualified by Section 3 cannot hold certain positions: “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.” Is the presidency an “Office . . . under the United States” for purposes of Section 3’s disqualification clause? Much to the consternation of our critics, we have not taken a firm position on this question. We have explained our reasoning in two articles now, but the critics are still unsatisfied. So be it. And this position is not new. We explained in a recent amicus brief from Michigan that “Since 2011, [Tillman] has expressly eschewed opining on the scope of Section 3’s ‘Office . . . under the United States’-language.” And we don’t plan to do so in this post. But in this post, we will discuss several aspects of oral argument with regard to the phrase “Office . . . under the United States.” Specifically, we will address the Jefferson Davis Horrible. The Jefferson Davis Horrible It is straightforward enough to argue that the presidency, as an abstract matter, is not covered by Section 3. But the optics of the argument change when talking about a particular person becoming president: Jefferson Davis. How could it be that the Fourteenth Amendment would have allowed Jefferson Davis to become President? We refer to this position as the Jefferson Davis Horrible. This description calls back to a prominent Supreme Court case from the not-to-distant past. The defining imagery of the Affordable Care Act litigation was a green vegetable: “Could Congress force people to purchase broccoli?” Indeed, Blackman considered putting a stalk of broccoli on the cover of his book about NFIB v. Sebelius, but (wisely) abandoned that choice. The so-called broccoli horrible was effective because the Solicitor General could not effectively draw a limiting principle: if the federal government can make you buy health insurance, why can’t it make you buy broccoli? Of course, the real answer is that Congress would never make anyone buy broccoli. It was such a far-fetched hypothetical because it appealed to the basest sense of what people see as right and wrong—and disgust with green vegetables. Professor Gerard Magliocca and others have found some newspaper articles that make the point, in various fashions, that Jefferson Davis should not be allowed to be elected as President of the United States. We can get the easy part out of the way. Jefferson Davis had served as a cabinet official, and in Congress, so he clearly held a Section-3 covered triggering or jurisdictional position, including as an “officer of the United States,” and he took an Article VI oath. The only question, then, is whether the President is an “Office . . . under the United States.” None of these sources actually say that Davis, if elected as President, would hold an “Office . . . under the United States.” Rather, we are asked to draw an inference: because people in that era did not think Jefferson Davis should become president, those same people thought that the presidency is an “Office . . . under the United States.” We do not know if any of these newspaper writers considered or were even aware of the precise text of Section 3. To our knowledge, none of these sources attempt to parse the text. At most, they rely on a gestalt: generally, Section 3 was designed to keep confederates out of office, and Jefferson Davis was a leading confederate. This is certainly an argument that newspaper writers can make, but it is not one grounded in the precise text that the Framers of the Fourteenth Amendment drafted and the states ratified. Still, the Davis hypothetical leads to a predictable response: any reading of Section 3 that could lead to a President Jefferson Davis must be wrong. We think there are five possible responses to the Jefferson Davis Horrible. We don’t specifically embrace these responses, in whole or in part. Moreover, we do not see any pressing need to address this question because whatever its answer, in the context of current Section-3 Trump-related cases, former President Trump never held any jurisdictional or triggering office—he never held a position that can be fairly characterized as an “officer of the United States” as that phrase was used in Section 3 and in the Constitution of 1788. As such, Trump cannot be excluded from the ballot based on Section 3. Nevertheless, others may disagree with our position on the scope of Section 3’s “officer of the United States”-language and the Colorado Supreme Court asked questions related to Section 3’s “office . . . under the United States”-language. For those reasons, below, we put forward some possible answers to the court’s questions. Response #1: Original Meaning, Not Original Intentions As a matter of original public meaning, the presidency is either an “office . . . under the United States” or it is not. That question would not turn on the identity of any particular presidential candidate. By contrast, the Jefferson Davis Horrible is premised on some other modality. We can call it original intentions: “Did the Framers intend to exclude the presidency from Section 3’s list of disqualified positions?” We might also call it original expected applications: “Would the Framers have expected someone like Jefferson Davis to be excluded from Section 3’s list of disqualified positions?” Perhaps Professors Baude, Campbell, and Sachs might call it the General Law Theory of Section 3: that is, there is some unwritten law or background principles under which the presidency is obviously covered by Section 3. We favor original public meaning originalism. It is the meaning of the ratified text which controls, and not speculations about intentions. Justice Scalia pithily stated this approach in A Matter of Interpretation: “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.” If Justice Scalia’s approach controls, then the Jefferson Davis Horrible is irrelevant: if the presidency is not an “Office . . . under the United States,” then Jefferson Davis could have become President. We recognize this argument may be unsatisfying to some. Indeed, some prominent originalists, including Professors Baude and Paulsen, have quickly jumped ship. When the going gets tough, they quickly succumb to original intentions or original expected applications, as a result, they avoid the Jefferson Davis Horrible. By contrast, non-originalists like Professor Graber have no difficulty accepting this argument based on the intentions of those who framed the Fourteenth Amendment. By contrast, our position was and remains original public meaning originalism. Still, we recognize that Judges who may not strictly adhere to Justice Scalia’s methodology are more attuned to factors beyond the plain meaning of the text. Response #2: The Framers and Ratifiers of the Fourteenth Amendment were not worried about Jefferson Davis Becoming President The Jefferson Davis Horrible resembles the broccoli horrible in one important regard. Jefferson Davis was never going to be elected President of the United States. It was not going to happen. The notion that northern states might support Davis&he…

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