Officer – Then and Now

The 14th Amendment to the U.S. Constituion concerns the traitors to the United States, who during the Civil War organized 11 states as the Confederacy and fought against the American Union and for the perpetuation of slavery.

Their rebelion – their insurrection – began April 12, 1861, when Confederate General Pierre T. Bearegard, who just three months earlier had been superintendent of West Point, ordered a cannonade against Ft. Sumter in Charleston Harbor. It ended April 9, 1865, when rebel General Robert E. Lee surrendered to Union General Ulysses S. Grant at Appomatox Courthouse, Viginia.

Five days later at Ford’s Theater the assassin’s bullet struck Abraham Lincoln. He died the next morning, April 15, 1865, murder taking the man who in his Second Inaugural Address little more than a month before advised a wounded nation to act “…with malice toward none, with charity for all…”

The 13th Amendment, abolishing slavery, had been approved by Congress in February 1865 shortly before his death as it turned out. That owed to the determination of Mr. Lincoln to end slavery as a consequence of the Civil War, and get it done before the war ended. The President wanted no equivocation afterward about the permanent abolition of that wicked institution. It was ratified by the states at the end of 1865.

The 14th Amendment set out the terms for citizenship and limited the return to public duties of certain classes among the rebels. It achieved full ratification in July 1868.

The 15th Amendment guanteed the vote to all citizens – all male citizens at the time – with no restriction “…as to race, color, or previous condition of servitude.” It was adopted finally in 1870. Women, Black and white, would wait another 49 years before their right to vote was enshrined in the Constitution.

As to the war that led to these reconstruction amendments, although some rebellious troops in the West did not surrender for two months after Appomatox until federal soldiers arrived in June at Galveston, the war effectively ended April 9.

The union forces at Galveston proclaimed the 250,000 slaves in Texas free on June 21, a date known ever after as Juneteenth. With that, there were no slaves for once and all in the United States. No one owned another person.

On that date there were 25 states in the Union, including the four border states that never seceded and remained loyal to the union. Eleven other states had rebelled. Gradually they would be readmitted to the Union as others were admitted during and soon after the war.

The Constitution requires to ammend it, two-thirds approval by each house followed by concurrence by three fourths of the states. The 14th Amendment took some time. It passed the House early and easily, 128-to-37 with 19 members not voting. But it lingered for two years in the Senate, finally winning there by 33-to-11. It gained quick ratification from the necessary 28 states among then 37, and became part of the Constitution in July 1868.

Of note is that in Section 2 the 14th Amendment removed the original constitutional definition of a Black person as three-fiths of a person, henceforth every man, women and child would be considered and counted as a whole human being. Ironically, this increased the populations of the former slave states for representation in Congress and the Electoral College, a reverse bonus for losing the war.

Today however there is great turmoil concerning the language of the 14th Amendment, with the entire focus on Section 3.

The 14th Article in Section 3 says:

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, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

As of this writing the Supreme Court of Colorado on the petition of dissenting Republicans has found Section 3 prohibits former President Donald J. Trump from appearing on the Colorado Presidential Republican primary ballot in March. The Supreme Court of Michigan has ruled the opposite, holding that he can be a candidate in that state, while the Secretaries of State of Maine and California have ruled in the first instance that he is prohibited and in the second that he cannot be removed from their state ballots.

Other states are considering the question. Maine and Colorado have stayed their determinations pending anticipated appeals.

The Republican Party of Colorado has filed such an appeal with the U.S. Supreme Court asking it to overturn the Colorado decision. It is open to question whether the party has standing to seek the court’s intervention.

There is no doubt however that Trump has such standing. One way or another whether Section 3 prevents his name from appearing on presidential ballots in primaries and looking ahead to the November general election, the question is certain now to be answered by the Supreme Court. With directly contradictory decisions by four states on a constitutional issue and more likely to follow, it must be if only to have an orderly national election.

Then what does Secton 3 mean as to Trump?

First, did he hold an office under oath? Yes, as President of the U.S., but the presidency is not mentioned among the list of specific offices. Perhaps, indeed most likely that is because only one man, President Lincoln, held that office during the Civil War. Certainly he did not trespass his oath, he embodied it, and remained steadfast in his loyal leadership of the United States. There was no prior experience ever of presidential violation of the constitutional oath. Perhaps they chose not to say President because no President had ever done it.

Second, does Trump now seek to hold “…any office, civil or military…” of the United States? Yes, he seeks the civil office of President but while establishing the bar for members of Congress, presidential electors, and state officials, the 14th Amendment as noted is silent specifically as to the presidency itself as one of those offices. Could that mean Section 3 was meant only to deal with the insurrection of the Civil War – that it did not foresee future rebellions of comparable scale or any scale? Is that what Section 3 means with reference to rebellion or insurrection?

Third, if there was an insurrection, did Trump: Take part on Jan. 6, 2021 when he urged thousands of supporters at a post-election event to go to Capitol Hill where they assaulted the Congress? Take part implicitly as the rally became a mob and the mob sought to stop Congress from completing its constitutional duty to certify the 2020 presidential election? Take part by doing nothing for hours to stop the mob while it broke into the building, invaded the building, defaced it, and hunted for Congress members and for the Vice President?

Fourth, was that event “a rebellion or insurrection”? Who decides? A state Secretary of State? Congress? General public understanding? Cable TV pundits? The Department of Justice in cases against insurrectionists, or now against Trump himself? A jury eventually in his case? A state court? A federal appellate court? The United States Supreme Court?

If it is agreed it was an insurrection, if the Supreme Court agrees, and it has not considered the question yet, then what of Trump?

In our system it is the United States Supreme Court that has to say whether Jan. 6 was an insurrection, a rebellion, before it can even decide whether Trump took part in it and further fomented and permitted it.

Did Trump on that day, in the words of Section 3 of the amendement, hold any of the specific offices it names under oath to the U.S. Constitution?

Does he meet the Section 3 test of “… having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States…”?

Let’s dispose of the easy part. Trump has never been a member of the House or Senate. He has never been a member of a state legislature. He is not and never has been an executive officer or judicial officer of any state. He has been President of the United States, but that office is not named except by inference.

The next question then is the meaning of “an officer of the United States…”

Trump is a former President of the United States. He took an oath to the Constitution that made him president on Jan. 20, 2017.

Is the President “… an officer of the United States”? Is that what the writers of the amendment meant or did they mean something much narrower? Did they mean, literally, only former U.S. military officers who became insurectionists? Even if they did, are we and more to the point is the high court bound by that meaning?

Let’s look at the United States Miltary Academy at West Point for some insight. Between the graduation of its first class in 1802 and the start of the Civil War in April 1861, the Academy graduated about 2,050 men – all white men of course.

At the start of the war there were about 1,120 living graduates of the academy. Among them 800 fought for the Union while some 300 rebelled and fought for the confderate states with various officer ranks.

Among those who fought for the Union and became a general – with the years of their academy graduations noted in parenthesis - were Grant (1843), William T. Sherman, (1840), Phillip Sheridan (1854), George A. Custer (1861/the last stand), Ambrose Burnside (1847), George Meade (1835), George McClellan (1846), and Abner Doubleday. Yes, before he supposedly invented baseball Doubleday was a West Point graduate in 1842, and later a union officer.

They were among the estimated 290 West Pointers who became Union generals. Many thousands of others from the academy and from other experiences and stations in life also became Army officers.

In the South were Lee (1829), Thomas “Stonewall” Jackson (1846), George E. Pickett of Pickett’s charge fame at Gettysburg (1846), James Ewell Brown Stuart – “Jeb” Stuart (1854), and James Longstreet (1842) to name but a few of the prominent among 150 West Point graduates who became confederate generals.

Jefferson Davis, president of the Confederacy and before the war a U.S. Senator from Mississippi, graduated West Point in 1828. Its vice president was former U.S. Sen. Alexander Stephens of Georgia, who later as a restored citizen again served Georgia in the Senate. Both were disbarred by Section 3 as former members of the United States Congress, who had been faithless to their oaths to the U.S. Constitution.

As noted, Section 3 of Article 14 does not name the offices of President and Vice President. These two offices and titles are not mentioned at all in Section 3.

So when its drafters wrote “… officer of the United States” but did not modify that with the word civil, did they mean that to include the President and Vice President, to mean generally all officials of the federal government? If they did, why did they not use the word official as well as, or in lieu of the word officer? Why did they not on the second reference specify “civil and military” officers?

Or – having just experienced a war in which historical estimates say 620,000 Black and white soldiers died on both sides; a war in which hundreds of men served as generals or lesser officers; a war whose news was relentless,ubiquitous and inescapable every day in all the newspapers and simple ordinary conversation; a war marked especially by the choices made by West Point officers, to stay North or go South – did they literally mean military officers and only military officers?

I am inclined to believe they intended that limitation given the exigent experience the nation had just come through when thousands of military officers were in view all the time not only in the papers but on parade, on trains, in the streets, in the shops, hotels, restaurants, in all public places and often right at home or just next door.

We cannot know intention and certainly not for all time know it to be unchanging, unwavering. No, we truly cannot say at all what the high court majority says with certainty, that the men who drafted the Bill of Rights in 1789 actually somehow knew 200 years later there would be assault weapons they intended the 2nd Amendement to protect; weapons that kill scores of people in less time than it took then to kill one person with a musket or pistol.

To say that was their intention is not only preposterous, it is stupid. How could they apply a rule to something they never even imagined? Such a contention insults intelligence and renders history pointless. But explain that to the miserables on this Supreme Court who believe they can read the minds of the dead.

How then will the justices understand the word “officer”. Will they give it meaning broad enough to say surely it includes the chief executive officer of the United States – the President.

Or will they say that in their time, in the context of the costliest war in the history of the United States before or since, the drafters of Section 3 literally meant military officers and that their intention is not to be further inferred or sensbily expanded?

As a matter of law and Constitutional understanding the court could take the more expansive view that a President is indeed an officer of the nation; that he can be excluded from the presidential ballot if he foments or participates in an insurrection. Of course this would mean the high court finds the events of Jan. 6,2021 were an insurrection against the United States and says so.
We think they will. We think they should. But we don’t know yet.

Would it be best if the court spoke unanimously as it did in Brown v. Board of Education? Yes. Will it? Not likely.

It is more likely the court majority will put on its hoods and rule for Trump on any basis it can concoct from the language of Section 3, based on the justices divining the intentions of its drafters when there is no one among those who wrote them they can ask because – because they are all long dead.

Once again Alito and Thomas with their allies on the court will hold a conservative’s seance, commune with the dead and tell us what they meant for all time when they wrote Section 3.

The petard is hoisted now for the court.It must sit on it regardless. It is going to hurt.