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Friday, July 29, 2016

Comment: Tillman on Baude on Tillman on "Office" and "Officer" as used in the Constitution of 1788

I thank Professor Baude for his many very kind words. I have only a few clarifications and comments by way of response: some general, some technical.

First, it was never my intent to lead a crusade. Indeed, I like to write about, and do write about, legal topics—other than Office and Officer—from time to time. Unfortunately, every time I try to extricate myself from the Office and Officer issue, I find myself again and again painfully saying: “Just when I thought I was out, they pull me back in.” Moreover, I would be pleased, very pleased, if others—including students looking for research topics—would join me in this project (even if only to critique and challenge what I have written to date). There is still so much to be done. Because I now live abroad—in Ireland—I find myself immersed more and more in the law and policy of this jurisdiction. As such, in the future, I must expect to have less time to devote to this line of research. If this line of inquiry is to prosper, then others will have to join in the project. I cannot be more plain: this is an invitation to one and all.

Second, my position is that Office ... under the United States is meaningfully distinguishable from other Office terminology used in the Constitution. However, Office ... under the United States has several variations. These include: (i) Office under the United States, (ii) Office of Trust or Profit under the United States, (iii) Office of Profit or Trust under [the United States], and (iv) Office of honor, Trust or Profit under the United States. As a purely theoretical exercise, it is possible to imagine a congressionally-created position that might be in one of these categories, but not in others. But, as a practical matter, I believe that each position Congress has created (or authorized), or is likely to create (or authorize), is either in all of these categories, or it is in none of them. As a practical matter, I believe the Constitution’s variants on Office ... under the United States are coextensive. Why that is so is a matter of considerable interest (at least to me), but it is far too complex to address in these comments.

Third, as to Washington’s two diplomatic gifts ... only one of them was made in full public view. LaFayette, then a French official, gave President Washington the key (actually one of many extant keys) to the Bastille. The gift was widely reported at the time in American newspapers. The other gift—a full-length framed portrait of Louis XVI—was made by the French ambassador via private correspondence. However, many must have known about the gift of the portrait: it was on display in Washington’s anteroom, beyond which he entertained official visitors. I would characterize Washington’s actions here as reasonable disclosure by a faithful fiduciary. But even if my characterization is too generous, it cannot be doubted that Washington received, acknowledged, and kept the portrait: all absent congressional consent per the Foreign Emoluments Clause. For all these reasons, I conclude that Washington and his contemporaries did not believe that this clause, and the clause’s Office ... under the United States language, applied to the President.

Fourth and finally, Professor Baude writes: “So if ‘Officer’ and ‘Officer of the United States’ are the same thing, the presidential succession statute is unconstitutional ... an argument made by James Madison ....” My own view is that this statement is incorrect. It is a legal and historical meme or myth. Madison never “made” any such argument. The original source involved indicates only that Madison was relaying news from the capital to Pendleton in Virginia—in private correspondence. These arguments were “made” not by Madison, but by others on the House floor during debate on the Presidential Succession Act of 1792. I have no reason to believe that Madison agreed with this particular argument—and there is no record (as far as I know) of Madison’s having “made” this argument in House debate or in any other public forum. There are those today who wish to impugn the constitutional bona fides of the modern Presidential Succession Act of 1947, which like its 1792 predecessor, permits legislative officer succession. There are policy grounds for objecting to the 1947 Act, but rooting a modern constitutional objection in Madison’s voice is ahistorical. I would ask all those (and there are many) who have supported their position by arguing that Madison was one of their number to take another good hard look at the full documentary record.

Lecturer, Maynooth University Department of Law

Twitter: https://twitter.com/SethBTillman (@SethBTillman) 

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