Harry Potter and the Constitution’s Text

 

 

Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113, 114–15 (1995) (“As a textual matter, each of these five formulations [in the Constitution] seemingly describes the same stations . . . the modifying terms ‘of,’ ‘under,’ and ‘under the Authority of’ [used in regard to the terms ‘offices’ and ‘officers’] are essentially synonymous.”); Steven G. Calabresi, Response, The Political Question of Presidential Succession, 48 Stan. L. Rev. 155, 160 (1995) (“The Constitution does not contemplate a weird [!] distinction between ‘Officers of the United States’ [as used in the Appointments Clause] and ‘Officers of the Government of the United States [as used in the Necessary and Proper Clause].’”); Michael B. Rappaport, The President’s Veto and the Constitution, 87 Nw. U. L. Rev. 735, 754 n.73 (1993) (“The term ‘votes’ [in the Orders, Resolutions, and Votes Clause] apparently did not even have a specific historical meaning . . . .”); cf., e.g., Richard D. Friedman, Some Modest Proposals on the Vice-Presidency, 86 Mich. L. Rev. 1703, 1720 n.72 (1988) (“Probably not much weight should be put on the term ‘appointment’ . . . .”). 

Compare Akhil Reed Amar, America’s Constitution: A Biography 172 (“Madison buttressed this argument [against legislative officer succession] by stressing Article II’s slightly stilted syntax, which authorized Congress to declare ‘what officer,’ as opposed to ‘which officer’ . . . .” (quoting Letter from James Madison to Edmund Pendleton (Feb. 21, 1792), in 14 The Papers of James Madison 235, 236 (Robert A. Rutland et al. eds., 1983))), with Bowaman v. Reeve, (1721) 24 English Reports 259, 261 (Chancery) (Harcourt, L.C.) (“[T]hey must take what part they think fit in satisfaction of their debts . . . .” (emphasis added)), 1 Robert Burns, The Works of Robert Burns 112 (Liverpool, M’Creery 1800) (“[A]nd who can chuse what book he shall read . . . .” (emphasis added)), John Dickinson, An Essay on the Constitutional Power of Great-Britain over the Colonies in America 391 n. (Philadelphia 1774) (“Every man’s children being by nature as free as himself . . . may . . . choose what society they will join themselves to . . . [and] what commonwealth they will put themselves under . . . .” (emphases added) (quoting John Locke)), and 6 J.K. Rowling, Harry Potter and the Half-Blood Prince 271 (2005) (“ ‘Magic?’ [Tom Riddle] repeated in a whisper. ‘That’s right,’ said [Albus] Dumbledore. ‘It’s . . . it’s magic, what I can do?’ [said Riddle] ‘What is it that you can do?’ [said Dumbledore]” (emphasis added)). 

Whether the Constitution’s language was “stilted,” as suggested by Professor Amar, depends on whether its original audience was more like Rowling’s (and Dickinson’s and the eighteenth century English Court of Chancery’s) or more like Amar’s Stanford Law Review audience. Cf. Mary Sarah Bilder, James Madison, Law Student and Demi-Lawyer, 28 Law & Hist. Rev. 389 (2010) (taking a more linguistically exacting approach as suggested here).

Seth Barrett Tillman, ‘Harry Potter and the Constitution’s Text,’ New Reform Club (Dec. 4, 2025, 1:00 PM), <https://reformclub.blogspot.com/2025/12/harry-potter-and-constitutions-text.html>;