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Monday, October 12, 2015

Constitutional Interpretation and the Standard Originalist Narrative

One of the most frustrating things about participating in debate about the meaning of the Constitution is dealing with the standard originalist narrative (“SON”). The SON is powerful. A good part of its power lies in the fact that those who are under its spell have never considered its correctness. Alternatively, if they continue to adhere to the SON after having considered its correctness, there are many who nevertheless fail to let their readers know that the narrative is contested. Debate takes place infrequently if at all. Only one voice is regularly heard. The counter-position is a voice confined to the margins of academia and to the margins of high culture (including high judicial culture).

Image result for no religious testLet me give you my favourite example. You will find repeated statements in judicial opinions and academic articles (in law and other fields) to the effect that oaths (or affirmations) were central to the Framers’ constitutional vision. So central, in fact, that all government officials, federal and state, are required by the text of the Constitution to take an oath (or affirmation) to support the Constitution. See, e.g., Eakin v. Raub, 12 Serg. & Rawle 330, 353 (Pa. 1825) (Gibson, J., dissenting) (“The oath to support the constitution is not peculiar to the judges, but is taken indiscriminately by every officer of the government, and is designed rather as a test of the political principles of the man, than to bind the officer in the discharge of his duty . . . .”); Michael Stokes Paulsen, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1261 (2004) (describing the Article VI oath as “universal” and applying to “all federal and state officers”); Diana Schaub, Dysfunction Is No Excuse for Misreading the Constitution, Library of Law & Liberty (Oct. 9, 2015),  (“A non-member Speaker would be the only office-holder in our system not bound by [the Article VI] oath.” (emphasis added)); see also, e.g., Paul Horwitz, Honor’s Constitutional Moment: The Oath and Presidential Transitions, 103 Nw. U. L. Rev. 1067, 1069 (2009) (“Under Article VI of the Constitution, every federal and state officer takes an oath or affirmation to ‘support this Constitution.’” (citing Article VI, Clause 3) (emphasis in the original)); Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. U. L. Rev. 857, 920 (2009) (“It is ‘this Constitution’—a specific written text—that all officers of government swear to support and to be bound by, according to its written terms.” (emphasis added)); Judge William H. Pryor, Jr., The Religious Faith and Judicial Duty of an American Catholic Judge, 24 Yale L. & Pol’y Rev. 347, 350 (2006) (“The Framers required in Article VI of the Constitution that all the officers of our government, including judges, ‘be bound by oath or affirmation, to support th[e] Constitution.’” (emphasis added)).

As evidence, the SON's true believers quote Article VI, Clause 3 which states:

The Senators and Representatives . . . and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

There is an interpretive puzzle here. Why does the Religious Test Clause (“RTC”) (in bold) so radically depart from the language of the immediate prior clause, i.e., the Oaths and Affirmations Clause (“OAC”) (in italics)? If both clauses, as the dominant paradigms teach, extend to all federal positions, then why does not the latter clause read:

“No religious test shall ever be required as a qualification to any federal position listed in the immediate prior clause.”


“No religious test shall ever be required as a qualification in relation to the position of Senator and Representative, and all executive and judicial officers of the United States.”

Why the changed language? We do not usually suppose that neighbouring text—in the very same sentence—which varies has identical meaning. Rather, different language implies different meaning. So the two clauses probably do not both extend to all federal positions. It seems to follow that only one of the two clauses may have that meaning (i.e., extending to all federal positions) and that the other clause reaches only a subset of all federal positions. If only one clause could reach all federal positions, is not the better choice the RTC? Can we come up with any likely choice of a federal position which the Framers would have willingly extended a religious test to? In fact, during ratification, was it not pellucidly clear that the RTC reached any and all federal positions?

If the RTC reaches all federal positions, then the OAC does not. What federal positions, if any, were left out and beyond the reach of the OAC?

Again, this is a puzzle, but it is not a difficult one. The OAC’s “judicial officer” language includes the federal judges at every level and their staffs (e.g., the clerks of the courts). The “executive officers” language includes the President’s subordinates (e.g., the cabinet), and the President’s oath is separately provided for in Article II. But when it comes to Congress, the OAC only includes elected officials, e.g., Senators and Representatives. Non-member congressional staff (e.g., Clerk of the House and Secretary of the Senate) are not included. See, e.g., Steven G. Calabresi, Response, The Political Question of Presidential Succession, 48 Stan. L. Rev. 155, 162 (1995) (“No constitutional oath is required of [non-member subordinate] legislative officers, like the Clerk of the House or the Secretary of the Senate . . . .”). We could have a conversation about why these congressional positions were left out. I have some theories on this matter, but we do not need to have that conversation because the text is clear.

But the problem goes deeper. It is not just congressional staff which are beyond the aegis of this OAC.

Consider these elected positions: (1) presidential electors; (2) elected territorial officials (including the members of its legislature); (3) elected national constitutional convention members meeting under the authority of Article V for the purpose of proposing amendments to the federal constitution; (4) elected state constitutional convention members meeting under the authority of Article V for the purpose of ratifying or rejecting proposed amendments to the federal constitution; (5) elected state (or territorial) constitutional convention members meeting under the authority of a state (or territorial) constitution for the purpose of amending the state (or territorial) constitution; and, (6) the Vice President of the United States (albeit, this has been and remains a matter of debate). Why? All elected positions are beyond the scope of Article VI's “officer of the United States” language. See United States v. Mouat, 124 U.S. 303, 307 (1888) (Miller, J.) (“Unless a person in the service of the Government, therefore holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States.” (emphasis added)).

Consider these appointed positions: (1) all House, Senate, and congressional staff (e.g., Clerk of the House, Secretary of the Senate, sergeants at arms of each house, door keepers of each house, the Architect of the Capitol, and members’ chiefs of staff); (2) advisors to the President—even those situated in the White House—who lack individualized legal discretion or power to affect binding legal relations; (3) territorial officers appointed by elected nonjudicial territorial officials; (4) American nominees or appointees to treaty-created offices; (5) multistate compact officials; (6) holders of letters of marque and reprisal; and, (7) trustees, directors, members, and officers (and, perhaps, employees, and other agents) of federally chartered trusts, corporations, and other private entities with legal personality.

Other positions beyond the scope of the OAC include: (1) voters in federal elections; (2) jurors on federal juries (and federal grand juries); (3) attorneys admitted to practice before the bar of a federal court; (4) enlisted federal (or state) military personnel (including the modern National Guard); (5) permanent or ad hoc federal civil servants; (6) federal contractors (including private jailors); (7) qui tam plaintiffs asserting a federal cause of action in a federal forum; (8) individuals affiliated with private entities created under state (or federal, or even foreign) law in which significant equity (or, possibly, debt) is held by the United States government; (9) individuals serving in an ad hoc common law posse comitatus under a United States marshal or under a United States attorney (or under a state or territorial Executive Branch official where federal law or a federal writ is being enforced); and, (10) individuals serving in private bodies authorized by federal law to create codes of conduct for members, to adjudicate disputes involving members, and/or to enforce such codes in proceedings involving members (albeit the constitutionality of such delegations to private bodies has been and remains contested).[1]

To the extent these functionaries are subject to an oath to uphold the Constitution, it is because of a statute, not because of Article VI. Moreover, where such an oath is imposed, it is imposed wholly at the discretion of Congress—these oaths are not mandatory in the sense that they are constitutionally commanded.

But the standard originalist narrative survives.

Seth Barrett Tillman

PS: My prior post is: Seth Barrett Tillman, Teaching the History of the American Civil War: Flies of a Summer (Part II), The New Reform Club (Oct. 9, 2015, 4:01 AM),

PPS: If you liked this post, you may also want to read: A Non-member Speaker, the Debate, and its Lessons, The Originalism Blog (October 12, 2015, 6:04 AM). 

Twitter:  ( @SethBTillman )

[1] If you think I have missed some category of public or quasi-public functionary which is outside the ambit of Article VI, do write me and let me know what I missed. (sbarrettillman at 


Tim Kowal said...

Two possibilities present themselves to this nonscholar. First, mandates are often constructed narrowly, prohibitions more broadly. Here, those who "shall be bound by an oath" are specifically defined to limit these governmental offices. The prohibition on religious tests -- relevant to the subject matter but carrying a different principle -- is applied to government power generally, but for the similar abstract purpose of limiting governmental power.

Second, would be interesting to see the original draft of the language -- clauses drafted by committee over many sessions often lose their internal coherence. See, e.g., damn-near every modern statute.

Tom Van Dyke said...

This is all moot since Torcaso anyway, though, but does give us a window into the religio-political landscape of the Founding era. Pace Kramnik & Moore's The Godless Constitution, now the Bible of the strict separationists, religion was left to the states.

I find Joseph Story's view reasonable, that the Constitution's RTC was designed to head off Christian intersectarian strife more than religion generally. As Seth points out, state officers, even electors, could be subject to religious tests, just not certain designated national "officers."

§ 1873. It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject. The situation, too, of the different states equally proclaimed the policy, as well as the necessity of such an exclusion.

In some of the states, episcopalians constituted the predominant sect; in others, presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests.

Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.