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.
Seth
Lecturer,
Maynooth University Department of Law
PS:
Three lesser Tillman-authored publications on Office and Officer which
did not make it into Professor Baude’s list include: (i) Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. Colloquy 180 (2013); (ii) Seth Barrett Tillman, Member of the House of
Representatives and Vice President of the US: Can Paul Ryan Hold Both Positions
at the Same Time?, Jurist–Forum, Aug. 23, 2012;
and (iii) Seth Barrett Tillman, Letter to the Editor, Oath of Officers, 15(3) Claremont Review of Books 11, Summer 2015. Furthermore,
a few of my papers either generated full-length responses or appeared in
conjunction with other publications.
Twitter: https://twitter.com/SethBTillman (@SethBTillman)
My prior post is: Seth Barrett
Tillman, A Fun Journal: Jotwell—Journal
of Things We Like Lots, The New Reform Club
(July 28, 2016, 10:12 AM)
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