“If you want to tell people the truth, make them laugh, otherwise they’ll kill you.”— O. Wilde

Wednesday, August 10, 2016

My Next Paper: Counting Framers & Counting Originalists

The modern succession statute, the Presidential Succession Act of 1947, like its 1792 predecessor, provides for legislative officer succession** in the event that the presidency and vice presidency go vacant. Notwithstanding that majorities in both houses of the Second Congress voted for legislative officer succession, some modern scholars have suggested that the members erred, that is, the Presidential Succession Act of 1792 was unconstitutional.

These scholars have “appealed” from the “verdict” of the members of the Second Congress to the Framers sitting in the Second Congress. For example, Paul Taylor asserts that the 1792 Act “was opposed as unconstitutional by James Madison and a majority of other former Delegates to the Constitutional Convention.” (emphases added) Similar claims are made by Professors Akhil Amar, Vikram Amar, Feerick, Goldstein, Kalt, and Silva. But this position is not correct. Hugh Williamson—convention delegate from North Carolina and subsequently a Representative—was the only Framer holding an elected federal position at the time Congress enacted the 1792 statute who we know opposed legislative officer succession on constitutional grounds. In other words, we cannot credibly say that several, many, a plurality, much less a “majority” of the Framers opposed legislative officer succession on constitutional grounds. Indeed, to argue that even as few as two Framers, who were also members of the Second Congress, opposed legislative officer succession on constitutional grounds would be error.

In 1995, the Amars (as have others before and since) argued that James Madison opposed legislative officer succession on constitutional grounds. This is a legal and historical meme or myth. Madison never stated that he thought that legislative officer succession was unconstitutional, at least as far as our historical records show. The original source involved indicates only that Congressman Madison was relaying news from the capital to Pendleton in Virginia—in private correspondence. Madison merely transmitted to Pendleton several arguments touching upon the constitutionality of the 1792 Act which had been made by others on the House floor during debate on the 1792 Act. There is no reason to believe that Madison agreed with any one or more of the particular arguments he transmitted to Pendleton. 

There are those today who wish to impugn the constitutional bona fid├ęs of the modern 1947 Act, which like its 1792 predecessor, provides for legislative officer succession. There are some policy grounds for objecting to the 1947 Act—I do not suggest that all the policy arguments go in one direction. But I do state that rooting a modern constitutional objection in Madison’s voice or that of the Framers as a group is entirely ahistorical. In these circumstances, one cannot appeal the judgement of the Second Congress (as a whole) to the Framers (as a group), and if that appeal—for whatever reason—has, in the past, convinced some unwary authors and consumers of prior legal scholarship, it is only because some originalists cannot count.

Our analysis will proceed in a plain and orderly fashion, starting with John Francis Mercer, Maryland delegate to the Constitutional Convention and member of the Second Congress....


**Legislative officer succession is a term of art. Generally, it refers to putting the presiding officers of the House and/or Senatethe Speaker of the House and Senate President Pro Temporein the line of statutory succession should the presidency and vice presidency go vacant. 

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

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