A Critique of Two Left-of-Centre Views of the United States Constitution: Professor Akhil Amar & Professor Lawrence Lessig

Henry VII and his Council: Debate on the Use of Private Liveries by the Great Barons, and on Defiance of the Law of the Land through the use of Church Grounds as Sanctuary

Henry Tudor: My Lords, we have called you together today to discuss two matters, one important and one of little moment . . . .

[Council meeting ends.]

Earl of Pembroke: Which was the matter of little importance?

Henry Tudor: Well, you must ask the Earl of Lincoln or [Bishop] Fox.

—The Shadow of the Tower (1972)

Professor Akhil Amar (Yale Law School) and Professor Lawrence Lessig (Harvard Law School) have both written on the scope of the Constitution’s office-language. Indeed, their individual views on the scope of the Constitution’s office-language are central to (some of) the leading theories they have each popularized. 

Professor Amar has written repeatedly that the Constitution’s “Office ... under the United States”-language (including its textual variants) does not reach members of Congress (although it does encompass the presidency). Amar’s views on this point are central to his understanding of the Presidential Succession Clause and the several impeachment-related clauses in the Constitution. See, e.g., Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stanford Law Review 113, 115 (1995) (“‘Officers’ of or under the United States thus means certain members of the executive and judicial branches, but not legislators—the legacy of an earlier view sharply distinguishing the ‘people’s’ representatives in Parliament from ‘crown’ officers in executive and judicial positions.” (emphasis added)).

By contrast, Professor Lessig has expressed the view that the Constitution’s Foreign Emoluments Clause, which uses Office ... under the United States-language,[1] does reach members of Congress (and, apparently, the presidency). Lessig’s views on this point are central to his anti-corruption centred analysis of the original Constitution, and to his understanding of the First Amendment and of the permissible bounds of the regulation of political speech. See, e.g., Lawrence Lessig, A Reply to Professor Hasen, 126 Harvard Law Review Forum 61, 70 (2012) (“And most relevant to the conception of ‘dependence corruption’ that I have advanced here: the Framers banned members [of Congress] from receiving ‘any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State’ without the consent of Congress.’” (emphasis added)).

Professor Amar and Professor Lessig cannot both be correct. 

At most—only one of the two—Professor Amar and Professor Lessig—can be correct. Either the Constitution’s Office ... under the United States-language in the Foreign Emolument Clause (and elsewhere in the original Constitution) reaches members of Congress or it does not. It follows that (at least) one of these two deep thinkers is wrong, and wrong about an area of scholarship and a set of interpretive positions which have been widely (if not wildly) popularized by them.

It is not my goal here to settle this question: What is the scope of the Constitution’s office-language? Or, to put it another way, which—if either of these two scholars—is correct?

Instead, my purpose here is otherwise.

First, it is to point out that those on the left who have embraced both Professor Lessig’s and Professor Amar’s positions cannot do so in any intellectually coherent manner. Amar has written that the Constitution’s office-language does not reach members of Congress; Lessig has argued that it does.

Second, those embracing and promoting Professor Lessig’s views should explain where and how Amar’s analysis went wrong, and what consequences flow from Amar’s error in regard to his (Amar’s) understanding of the many constitutional provisions using the language of office and officer. Such constitutional provisions include: e.g., Disqualification Clause (“Office of honor, Trust or Profit under the United States” (emphasis added)); Incompatibility Clause (“Office under the United State”); Ineligibility Clause (“civil Office under the Authority of the United States”); Elector Incompatibility Clause (“Office of Trust or Profit under the United States”); Religious Test Clause (“Office or public Trust under the United States”); see also, e.g., Succession Clause (“what officer”); Necessary and Proper Clause (“the Government of the United States, or in any Department or Officer thereof”); Impeachment Clause (“civil Officers of the United States” and “Office” (emphasis added)); Appointments Clause (“all other Officers of the United States” and “such inferior Officers”); Commissions Clause (“all the Officers of the United States”); Oaths and Affirmations Clause (“all executive and judicial Officers, both of the United States and of the several States”). So the result of a reasoned debate over the scope of the Constitution’s office-language will have implications for many constitutional provisions, not just the Foreign Emoluments Clause. The stakes here are reasonably high. 

Third, those embracing and promoting Professor Amar’s views should explain where and how Lessig’s analysis went wrong, and what consequences flow from Lessig’s error in regard to his (Lessig’s) understanding of the Foreign Emoluments Clause and the many other constitutional provisions using the language of office and officer, and in regard to Lessig’s anti-corruption centred analysis of the First Amendment. Here too, the stakes are reasonably high. 

I am not under any delusion that my post here will have any practical effect on either Professor Amar or Professor Lessig.

Although in the not too distant past, I once had harboured the hope that Professor Amar might respond, I do not now expect that Professor Amar will write a response to this blog post or to my full-length academic publications touching on these interpretive issues. Nor do I, at this juncture, expect anything like a public response from Professor Lessig. And that is as it should be: this post is not directed to them; instead, it is directed to their academic and other supporters.

Both Professor Amar and Professor Lessig have a substantial number of academic supporters, not to mention a great many current and former colleagues and students, educated followers, acolytes, and fans. A good many on the left have espoused or embraced both the positions put forward by Amar and Lessig.

Not one of the Amar true believers has been willing to make the argument that Amar is correct, and that Lessig is wrong in regard to his (Lessig’s) interpretation of the Constitution’s office-language, and—from which it follows—that Lessig is also wrong about his anti-corruption centred analysis of the First Amendment.

Likewise, not one of the Lessig true believers has been willing to make the argument that Lessig is correct, and that Amar is wrong in regard to his (Amar’s) interpretation of the Constitution’s office-language, and—from which it follows—that Amar is also wrong about the Succession Clause, intratextualism, etc. 

Amar and Lessig cannot both be correct. At most—only one can be correct. We, the public, deserve a full, meaningful debate: not a cult—or, even, two well-placed elite academic cults—whose chief sacraments are omerta and humbug.

Will anyone—particularly those on the Left—step forward? Or will the many who have supported both Professor Amar’s and Professor Lessig’s views in this matter continue to support both, notwithstanding that these two views contradict one another?

Seth

PS: Here is my prior post: Seth Barrett Tillman, Miscellaneous Americana for the New Year, The New Reform Club (Dec. 20, 2015, 4:02 PM)

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

---

[1] U.S. Const. art. 1, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”).