Unveiling a Rushed and Flawed Article: The Section 3 Debate

This post is jointly written by Seth Barrett Tillman and James Heilpern. Recently, James Heilpern and Michael T. Worley posted an article to SSRN titled Evidence that the President is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment. The Authors conclude that our position is incorrect. Their Article cites an “undeniable urgency” to answer this question. As often happens in anticipation of, and during fast-paced litigation, people who have no prior expertise in an area profess an immediate expertise, and make bold conclusions with the intent of influencing that litigation. This may be one such paper. For reasons we discuss below, Justices and judges, lawyers, scholars, and the press should exercise caution before citing this paper.  The Authors have criticized us for making an argument which we have never adopted. Heilpern and Worley continue their discussion of antebellum oaths and what Article VI’s “support” language meant circa 1788 and 1868. They state: Given no one doubts Section 3 was to apply to South Carolina rebels, it is clear that the drafters of the 14th Amendment viewed an oath to “preserve, protect, and defend” the United States Constitution as an oath to “support” the United States Constitution. Any other reading of Section 3 appears absurd to us. They have not read our recent scholarship and briefs on the subject, and they do not understand our position. The Federal Convention met during 1787. Afterwards, eleven states ratified the Constitution over the course of 1787 through early 1788. As a result, the Constitution went into effect. Federal elections were held, and the First Congress met in March 1789. It took a few weeks to gather a quorum and to organize each house. Then the electoral votes were counted. The very first bill to be enacted was the Oaths Act of 1789. What was in that statute? Article VI only mandates that certain listed federal and state positions take an oath to “support” the Constitution. But Article VI does not mandate the specific words that compose the oath. That decision was left to Congress. Nor does Article VI specify what officials are authorized to swear in other office-holders, nor what procedures are to be followed, nor how official records of those oaths should be kept. The Oaths Act of 1789 specifies the text of the oath. The Oaths Act, ch. 1, 1 Stat. 23, § 1 states: Section 3 of the Oaths Act of 1789 made that oath applicable to state positions. And the Act became law on June 1, 1789. Neither Article VI, nor the Oaths Act of 1789 gave States any power to rewrite the Article VI oath. This is what happened between June 1789 and June 1790. After June 1790, when the new South Carolina Constitution went into effect, covered state positions began to take the Article IV oath established in the South Carolina Constitution. As a result, there are two possibilities. After June 1790, state officials in South Carolina exclusively took the Article IV state oath. On the other hand, the latter view is consistent with both federal and state constitutional and statutory law.