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 fidés 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.
There are those today who wish to impugn the constitutional bona fidés 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....
Seth
**Legislative officer succession is a term of art. Generally, it refers to putting the presiding officers of the House and/or Senate—the Speaker of the House and Senate President Pro Tempore—in the line of statutory succession should the presidency and vice presidency go vacant.
**Legislative officer succession is a term of art. Generally, it refers to putting the presiding officers of the House and/or Senate—the Speaker of the House and Senate President Pro Tempore—in the line of statutory succession should the presidency and vice presidency go vacant.
My prior paper: Seth Barrett
Tillman, Letter from President Lincoln to
Erastus Corning and others (June 12, 1863), The New Reform Club
(Aug. 9, 2016, 4:35 PM)
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