Thoughts on the Current Debate About the 14th Amendment to the US Constitution

By | Saturday, January 06, 2024 Leave a Comment


These are not novel thoughts. I mention them now because at this moment my head happens to be spinning around as though I were Linda Blair (and today is the 3rd anniversary of the January 6, 2021 attack on the US Capitol.)

Article 2, Section 1, Clause 8 of the US Constitution, "Presidential Oath of Office":

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Given that, how could anyone for even a moment suggest that the Presidency is not an "office" of the US Government, and the President is not an officer? The President elect must take an "Oath of Office" before he enters on the execution of his OFFICE.

Note: I use the pronouns “he” and “his” to match the usage in the text of the clause. But claiming that the President is not an officer of the United States would be as ludicrous as claiming that people of genders not using the pronouns "he" and "him" cannot be President.

Indeed, let us recall that President Obama had to take the "Oath of Office" a second time in 2009 because Justice Roberts prompted him to say it incorrectly the first time. The "Oath of Office" is so important that they had Obama sworn in a second time due to the transposition of a couple of words. How could anyone claim, other than in jest, that President Obama did not take the "Oath of Office" in order to assume an "office"???!!!??? It makes as much sense to suggest that "Marriage Vows" are not vows related to an impending marriage.

Now, on to the 14th Amendment of the US Constitution, Section 3:

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.

There are those who make the fatuous claim that by not specifically enumerating President and Vice President in the Amendment, the authors were intentionally excluding them.

But consider this:

During the debate on Section Three, one Senator asked why ex-Confederates “may be elected President or Vice President of the United States, and why did you all omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation.” Another Senator replied that the lack of specific language on the Presidency and Vice Presidency was irrelevant: “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” The Congressional Research Service 

Not only was it clear to the Senators drafting the Amendment that “officer” covered the President and Vice President, but one could also argue that including them in the text would diminish rather than expand the impact of the clause. Had the President and Vice President been called out for special treatment, there are those who might have then attempted to argue that the clause would not apply to other officers that were not specifically enumerated.

One of the Constitution’s greatest strengths is its adaptability. By saying only “officer” and not enumerating any particular office, the authors were able, in one stroke, to include all offices extant at the time as well as any offices that might come into existence in the future! Questioning whether or not they meant to cover the President and Vice President is impugning their wisdom.

I do not know how the current Supreme Court of the United States will rule on the case now before it related to the barring of the former President from the Republican party primary ballot in Colorado on the grounds that he participated in an insurrection. But regardless of how they rule, and on whatever grounds, I hope that they will take the opportunity to make it abundantly clear that the President is an officer of the United States and that Section 3 of the 14th Amendment most certainly applies to them.

Note: If you are a Justice on the Supreme Court, I hope that you will take my arguments into consideration. 😊
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