Skip to content
 

Six Answers for Six Puzzles

Over at The Originalism Blog, Professor Michael Ramsey has given his answers to Professor Seth Barrett Tillman’s “Six Puzzles” on the Constitution’s various uses of the terms “officers” and “offices.” FWIW, I tend to agree with all of Ramsey’s answers with one possible exception.

That relates to the first puzzle, which involves the Succession Clause’s provision that “Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President . . . .” The question is whether the term “Officer” encompasses legislative officers (if the answer is no, then it was unconstitutional for Congress to place the Speaker of the House and the President Pro Tem of the Senate in the line of succession).

Ramsey and Tillman believe that because the Succession Clause uses the broad term “Officer,” rather than a possibly narrower formulation such as “Officer of the United States” or “Officer under the United States,” as the Constitution does elsewhere, legislative officers must be covered. Given the Constitution’s varied usages of the terms “officer” and “office,” I find the term ambiguous. Structural and other evidence casts doubt on whether legislative officers were meant to be included. For example, in Article VI the Oath Clause applies to “Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.” I find it difficult to believe that the Framers deliberately decided to exclude non-member legislative officers from being bound by oath, yet decided to include them in the Succession Clause. It seems more likely that the term “Officers” standing alone was understood to include either executive officers only, or both executive and judicial officers, but that legislative officers were not understood to be “Officers” in the same sense, or were simply considered so unimportant as to be not worth mentioning.

10 Comments

  1. Seth Tillman says:

    Mike,

    The Elector Incompatibility Clause states: “[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” (U.S. const. art. II, s. 1, cl. 2) Is it your view that this Clause allows for or excludes the Secretary of the Senate and Clerk of the House from being an elector?

    Seth

  2. I don’t know. What is an “an Office of Trust or Profit under the United States” and how does it differ from an “Office or public Trust under the United States”? I doubt the Framers were trying to send us on a National Treasure hunt to decode these different expressions, but otherwise I have to think they were less than precise in some of the language chosen.

  3. Seth Tillman says:

    The fact that these distinctions look odd to us today — 200+ years later — does not mean they looked that way to the intelligent reader in 1789. My own view is that “public trust under the United States” was reserved for elected positions, constitutionally created offices, and offices at the top of an apex of authority: President, Vice President, Speaker of the House, President of the Senate, members of an Article V convention, etc. “Office under the United States” includes positions created, regularized, or defeasible by statute. It follows that the Religious Test Clause is the most comprehensive in scope including all elected and statutory offices, whereas other clauses — such as the Elector Incompatibility Clause and the Incompatibility Clause — place limitations of a more comprehensive scope.

    Contemporaneous English statutory law made fine textual distinctions along these lines. See CASES OF CONTROVERTED ELECTIONS, DETERMINED IN COMMITTEES OF THE HOUSE OF COMMONS, IN THE SECOND PARLIAMENT OF THE REIGN OF QUEEN VICTORIA 591-92 (Thomas Falconer & Edward H. Fitzherbert eds., London, Saunders & Benning 1839) (reproducing committee debate from disputed Galway election of 1838, where Mr. Austin—counsel for the sitting member who prevailed—distinguished offices “from the Crown” from offices “under the Crown” and cited statutes from the reign of Queen Anne, George III, and William IV (emphasis added)); GERARD CARNEY, MEMBERS OF PARLIAMENT: LAW & ETHICS 67 (2000) (reporting judicial authority distinguishing office of profit from the crown from office of profit under the crown); John Waugh, Disqualification of Members of Parliament in Victoria, 31 MONASH U. L. REV. 288, 297 (2005) (noting that English law distinguished office of profit from the crown from office of profit under the crown); Parliamentay Elections: Who Can Be Elected, 33 LAW NOTES 10, 11 (1929) (same, and noting that the distinction goes back to the Succession to the Crown Act 1707).

    See also ANNE TWOMEY, THE CONSTITUTION OF NEW SOUTH WALES 438 (2004) (“[O]ne would assume that [an elective office] is not . . . held ‘under the Crown’.”); id. (suggesting that an officer under the Crown is one “appointed by” or “removable by” a “representative of the Crown,” and “accountable to the Crown and subject to the supervision of an officer appointed by the Crown” (citing Hodel v Cruckshank (1889) 3 QLJ 141 (Qld S.C.) (Lilley, CJ))); CARNEY, supra, at 67-68 (same) (citing Hodel v Cruckshank (1889) 3 QLJ 141 (Qld S.C.) (Lilley, CJ)); see also State ex rel. Ragsdale v. Walker, 33 S.W. 813, 814 (Mo. 1896) (Macfarlane, J.) (“An office under the state must be one created by the laws of the state. The incumbent must be governed by state laws and must exercise his powers and perform his duties in obedience to a statute of the state.” (emphasis added)); In re Corliss, 11 R.I. 638 (1876) (Durfee, C.J., Burges, Potter, Matteson, JJ.) (“We think, too, the office is an office ‘under the United States.’ It was created by act of Congress, and all its powers and duties were conferred and imposed by Congress.”).

    At some point, if you are going to argue that the language of 1787-89 was not meaningful, you should put forward contemporaneous evidence for that position, as opposed to just asserting that that language carries little force with today’s modern commentators.

    Seth

  4. Seth Tillman says:

    Michael Stern — “National Treasure hunt to decode these different expressions . . . .”

    versus …

    In Marbury v. Madison, the Supreme Court, through Chief Justice Marshall, declared that “[i]t cannot be presumed that any clause in the constitution is intended to be without effect . . . .” 5 U.S. 137, 174 (1803). See Myers v. United States, 272 U.S. 52,151 (1926); (“[T]he usual canon of interpretation of that instrument [the Constitution] . . . requires that real effect should be given to all the words it uses.” (emphasis added)); Holmes v. Jennison, 39 U.S. 540, 570-71 (1840) (“In expounding the Constitution of the United States, every word must have its due force and appropriate meaning, for it is evident from the whole instrument that no word was unnecessarily used or needlessly added. . . . Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood. No word in the instrument, therefore, can be rejected as superfluous or unmeaning” (emphasis added)); Ogden v. Saunders, 25 U.S. 213, 316 (1827) (Trimble, J., concurring) (“[I]n construing an instrument of so much solemnity and importance, effect should be given, if possible, to every word. No expression should be regarded as a useless expletive . . . .”); 16 AM. JUR. § 65–Constitutional Law 421 (2d. ed. 2009) (“It is a basic rule of construction that a constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part . . . .”). Compare United States v. Sprague, 282 U.S. 716, 731 (1931) (requiring that words in the Constitution be given “their normal and ordinary as distinguished from technical meaning”), with Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (Chase, J.) (“The expressions ‘ex post facto laws,’ are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors.”).

    Seth

  5. Seth- well played! There is nothing like a string citation establishing a basic and uncontroverted point to create the impression that your opponent, at a minimum, must have slept through all of the constitutional and statutory interpretation courses offered in law school. Start the string with Marbury and the reader may wonder if the opponent downloaded his law degree from a disreputable website run out of the Ukraine.

    Still I can’t help but notice that you didn’t answer my question. You defined “public trust under the United States” but not “Office of Trust or Profit under the United States.” Assuming that the latter consists of two different types of offices, the Elector Incompatibility Clause applies to both an “Office of Profit under the United States” and an “Office of Trust under the United States.” An “Office of Trust under the United States” must be different than a “public Trust under the United States” because Chief Justice Marshall has decreed that different words are never used to mean the same thing, and people listen to Marshall even though he studied law at William and Mary, which is barely better than a Ukrainian website.

    It also follows from this precept that an “Office of Trust or Profit under the United States” must be different than an “Office under the United States,” presumably because the latter is broader than the former. Thus, there must be an “Office under the United States” which is not an “Office of Trust or Profit”—maybe Vice President, since he has virtually no responsibilities and famously occupies an office not worth a bucket of warm spit?

    You say that a “public trust under the United States” was reserved for “elected positions, constitutionally created offices, and offices at the apex of authority.” Unless I missed it, none of the contemporaneous authority you cite says anything about the meaning of “public trust,” which makes it difficult for me to say with assurance how you reached your conclusion. You may be right; I just don’t know why you have reached this conclusion with such confidence.

    You say: “It follows that the Religious Test Clause is the most comprehensive in scope, including all elected and statutory offices, whereas other clauses—such as the Elector Incompatibility Clause and the Incompatibility Clause—place limitations of a more comprehensive scope.” This sentence is a little hard to follow, but I think you are saying that an “Office of Trust or Profit under the United States” is a subset of “Office under the United States” and thus excludes both offices under the United States which are not “Offices of Trust or Profit” and “public Trusts.”

    Which brings us to your original question, which related to the status of the Clerk of the House and Secretary of the Senate. They are legislative officers elected by their respective bodies. Perhaps this means that from your perspective they hold “public Trusts,” but I am not sure. As officers, one might think that they hold “offices,” but as I recall you do not think the President is an “officer” even though he holds an “office.” Or perhaps it is that he holds an “office,” but not an “office under the United States,” which is confusing given that he holds a “public trust under the United States.” In any event, assuming the Clerk and Secretary hold offices, are they “Offices of Trust or Profit”? And are they “under the United States”? Maybe your framework provides a clear answer to these questions, but it is not immediately obvious to me.

    FWIW, I find it hard to see why the Clerk and Secretary would be treated differently for purposes of the Elector Incompatibility Clause than any other legislative employee. True they are formally elected by their respective bodies (ordinarily, at least, a Clerk can be appointed by the Speaker under some circumstances), but its not clear why this distinguishes them constitutionally from a legislative official (say the House General Counsel) who is appointed in accordance with rules adopted by the body. Couldn’t one argue that every appointed legislative official has the same constitutional status as the Clerk and Secretary?

    I am sure that your response will make all of this perfectly clear, but at the moment I remain perplexed. That’s what I get for attending a party school like the University of Chicago.

  6. Seth Tillman says:

    Mike,

    I’ll try answering your question again … “public trust under the United States” includes constitutionally-created positions, elected-positions, positions as the apex of a branch of government, not subject to supervision, direction, or removal in the regular course of their discretionary duties. “Office under the United States” includes holders of statutory offices: offices created, regularized, or defeasible by statute. “Office or public trust under the United States” includes both categories. “Office under the United States” only includes the statutory officers. Simple.

    My original question directed to you was …

    “The Elector Incompatibility Clause states: ‘[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.’ (U.S. const. art. II, s. 1, cl. 2) Is it your view that this Clause allows for or excludes the Secretary of the Senate and Clerk of the House from being an elector?”

    Now I do not think the Secretary or Clerk is distinguishable from most other non-elected (that is, public election) legislative administrative positions. But I want to focus on these two posts because these two positions are traditionally created or filled with organization (let’s avoid the continuing body question for simplicity and the institutional reforms of the 19th century) and carry historical weight across Anglo-American parliamentary bodies (including pre-1789).

    If you think the Secretary and Clerk fall under the scope of the Elector Incompatibility Clause and the Incompatibility Clause, then the Constitution is using “Office under the United States” (i.e., “office”-speak) to refer to positions beyond the Executive Branch and the Judicial Branch. And if that is the correct, then “Office” in the Succession Clause could also refer to legislative officers. Right?

    Now you might disagree. You might argue that “Office under the United States” in the Elector Incompatibility Clause and Incompatibility Clause only refers to Executive Branch and Judicial Branch officers.

    How could we determine which position is correct?

    We could look to history. Has any Senator, Representative, Speaker, or Senate President Pro Tempore every tried to pad his or her salary by also simultaneously holding an administrative post of Congress (e.g., Secretary or Clerk)? As far as I know – and I have diligently researched the question – albeit, one can always miss something – the answer is “no”. But, per Madison, men and women are not angels. And if they have not attempted it, to hold elected and administrative office in Congress, it may mean they believed they had no authority to do so. Such continuous practice (or, here, non-practice) carries some weight. It is not determinative, but it carries some weight. This is especially so because in pre-1789 Massachusetts there are examples of members also acting as clerk.

    As to your initial historical point … you wrote:

    “For example, in Article VI the Oath Clause applies to ‘Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.’ I find it difficult to believe that the Framers deliberately decided to exclude non-member legislative officers from being bound by oath, yet decided to include them in the Succession Clause.”

    I believe you will find that both Green and Clarke discuss the fact that the colonial elected assemblies in British North America objected to their administrative officers (i.e., the clerk) taking the state oath (which the royal governor sought to impose). See Mary Patterson Clarke, Parliamentary Privilege in the American Colonies (Leonard W. Levy ed., Da Capo Press 1971) (1943), Jack P. Green, The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies, 1689-1776 (1963). The elected members wanted their staff’s loyalty to run exclusively to themselves. Thus, it is not surprising that our Constitution’s Article VI oath embraced exempting parliamentary officers/legislative Branch administrative officers from the new national oath. It was an extant tradition. But these concerns had no role to play in regard to the Succession Clause.

    Sorry, I do not have an exact cite to Green or Clarke. I am doing this on the bus & from memory — I am in IRELAND! But if you really need a pin-point cite (and have no easy access yourself), I suppose I could take a trip to the library in Coláiste na Tríonóide.

    Seth
    University of Chicago, AB ‘84 (the party college in the party school)

  7. Your answer key is straightforward enough, as far as it goes, but there are a few problems.

    First, it doesn’t actually answer the question I asked- what is “an Office of Trust or Profit under the United States”? Reading between the lines, I take it that you equate it to “an Office under the United States,” but why then did the Framers use different words? Why should we conclude that an “Office of Trust under the United States” is different than a “public Trust under the United States,” but the same as an “Office under the United States”?

    Second, it doesn’t seem to answer the question you asked- does the Elector Incompatibility Clause apply to the Clerk and the Secretary? I gather from your response that you think the answer is yes, but I don’t see how that follows from your definitions. The Clerk and Secretary don’t hold “statutory offices,” do they? Their positions were not created by statute, but stem from the authority of their respective houses to “chuse” their officers.

    Third, I find it very hard to believe that the Clerk of the House is an “Officer under the United States,” but that the Speaker is not. The Constitution says the House “shall chuse their Speaker and other Officers.” If the intent was that the House could only select members to be Speaker, and could only select non-members to be “other officers,” and that these different types of officers would be treated differently under other constitutional clauses, it seems unlikely that they would have been lumped together in the only provision that refers specifically to these legislative officers.

    Fourth, your treatment of evidence relating to historical practice is rather peculiar. You cite the fact that no member has ever served as Clerk, Secretary, Sergeant at Arms or any other type of legislative officer, official or employee other than those reserved (by practice if not law) for members only. This, you suggest, demonstrates that these are “Offices under the United States” within the meaning of the Incompatible Offices Clause. But there is no evidence, so far as I am aware, that any member has ever expressed an interest in holding any of these positions, nor anything in House or Senate precedents to indicate that members are constitutionally barred from doing so.

    By contrast, there are many instances in which members have been elected as president or vice-president (eg, Obama and Biden) and have resigned their seats prior to taking the oath. I take it that you do not dispute that in each case this was done with the understanding that it was required by the Incompatible Offices Clause. This would seem to be much stronger evidence against your interpretation than the absence of member Clerks is for it.

    One can come up with explanations as to why the Framers might or might not have wanted to include legislative officers within the various clauses at issue, but all of them strike me as rather speculative. The simplest explanation would seem to be that they did not include legislative officers in any of the clauses because (1) legislative officers were not considered important enough to worry about and/or (2) any necessary regulation of those officers could safely be left up to the house that chose them in the first place.

  8. Seth Tillman says:

    Mike,

    These are all good questions. But a blog post does not permit me enough room to answer each of your questions in detail (although I have answered some in my extant working papers on SSRN and BEPRESS and in already-published journal articles).

    You ask why we should not equate “Office of Trust under the United States” with “Office under the United States”? The latter is broader: it includes lucrative office: “Office or profit”. You also ask why should not we equate “Office of Trust under the United States” with “public Trust under the United States.” First, the Constitution’s text – the Religious Test Clause – refers to “Office or public trust under the United States”. I read this to distinguish “Office … under the United States” (including “Office of trust”) from “public trust under the United States”. There is good contemporaneous authority supporting such a distinction. Letter from George Washington to Eléonor François Élie, Comte de Moustier (May 25, 1789), in 30 THE WRITINGS OF GEORGE WASHINGTON 333, 334 (John C. Fitzpatrick ed., 1939) (“The impossibility that one man should be able to perform all the great business of State, I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust.” (emphasis added)). We also know that this exact phraseology – in the Religious Test Clause — was manipulated by the Committee of the Style. So this language was chosen; it was not happenstance left over from fast and furious debate.

    I do agree with one broad point you make. In regard to the original Constitution, the Constitution of 1787, I have always agreed that:
    “Office under the United States” (U.S. Const. 1/6/2);
    “Office of Trust or Profit under the United States” (2/1/2);
    “Office of Profit or Trust under them [the United States]” (1/9/8); and
    “Office of honor, Trust or Profit under the United States” (1/3/7)
    are synonymous. [Albeit, “Office under the Authority of the United States” (also in U.S. Const. 1/6/2) is distinguishable from these latter categories.] My position here is rooted in textual and historical evidence and broad prudential concerns. It is true: standardized language may have preferable (to us today). But clarity also plays a role. And you yourself – in your prior query – dropped out lucrative office: “office of profit”. My general view is that the Framers worked from background norms and British statutory traditions which focused strictly on “offices of profit”. Pre-1787, incompatibility provisions between elected positions and appointed office generally extended to “offices of profit”. Constitutional and statutory restrictions against holding “offices of trust” were fairly new. (Indeed, in India and Australia, the incompatibility still extends only to “office of profit”. See, e.g., Aust. Const. Sec. 44.) With regard to “offices of honor,” my view is that they are subset of “Office of Trust”. “Offices of honor” are positions absent regular duties and absent regular emoluments (e.g., statutory fees and salary). See, e.g., Chancellor of the Duchy of Lancaster: a U.K. minister without a regular portfolio. The aggrandizement concerns at the heart of 1/6/2, 1/9/8 and 2/1/2 do not seriously implicate “offices of honor”. But a disqualified former officer looking to rebuild a shattered career behind a factional House or Senate majority or under a new presidential administration might settle for an “office of honor”. And so for clarity, “offices of honor” were textually excluded in the disqualification scenario even if such offices are just another type of “office of trust.” This is mostly inference on my part. But my inferences fit the text.

    As to your second and third query, my view is that the Secretary and Clerk hold sub-constitutional or statutory offices. They are “offices under the United States”, and as a result, they cannot function simultaneously as presidential electors or members of Congress. The fact that the Secretary and Clerk are chosen by the same mechanism as the Speaker or Senate President Pro Tempore does not establish that they all have the same status. The VP and President are chosen by the electoral college, but all acknowledge the President’s clear association with the Executive Branch. Whether the VP is in the Executive Branch, the Legislative Branch, both, or neither is a wholly separate question, and it is a question as old as the Republic. So the selection mechanism does not automatically clarify status. When the House chooses a Clerk, the House can pick the officer and control his/her powers via House members, House property, and other House employees. But, in relation to the how the Clerk interacts with persons outside the House — the other house, the other branches of the federal government, state government, and private parties – all such interactions can be controlled by statute (per the Necessary and Proper Clause … See Jefferson, Jefferson’s Manual, discussion of Congress’ implicit contempt power.) Because the powers of the Clerk (vis-a-vis outsiders) are regulable and defeasible by statute, the Clerk holds an “office under the United States”. By contrast, with regard to holders of public trusts under the United States, the President, his or her (constitutionally-granted) powers are not defeasible by statute. A statute cannot strip the President of his or her veto power. So, the president does not hold office under the United States. The President holds a public trust under the United States.

    Your historical evidence relating to Biden’s and Obama’s Senate resignations comes way too late to establish original public meaning. None of the early antebellum Presidents came directly from Congress. And as I explained on prior occasions, Washington accepted foreign government gifts (despite U.S. Const. 1/9/8) without congressional consent, but Andrew Jackson sought consent in similar circumstances. American-English changed rapidly after 1787. What Obama or Biden thought on this matter (Senate-VP and Senate-Presidential incompatibility) ought to carry very little weight with us today in regard to establishing original public meaning. (And, of course, both Obama and Biden had good prudential reasons to resign, even if not constitutionally compelled.)

    Seth

  9. Seth Tillman says:

    PS: I would still like to know your view.

    Can the Clerk or Secretary also sit as a member of the House or Senate? Can a person simultaneously be a presidential elector and Clerk or Secretary?

    I have told you my position. What is yours? I won’t go as far as to say that it takes a theory to beat a theory. But my position has the practical virtue of making the Constitution comprehensible. If after all this you still do not have a position, then, is not that a mark against your position (or lack thereof)?

    Seth

  10. I don’t know that I would go so far as to call it a theory, but my view is that the Clerk or Secretary cannot be a “Person holding any Office under the United States” within the meaning of the Incompatible Offices Clause. Therefore, a member could constitutionally serve in these positions, although there may well be statutory and ethical prohibitions against holding such dual offices.

    If a legislative officer is not a “Person holding any Office under the United States,” presumptively he would not seem to be a “Person holding an Office of Trust or Profit under the United States” under the Elector Incompatibility Clause. You suggest, plausibly, that the terms are synonymous (which, if true, confirms that the drafting in regard to “office” and “officer” was less technical and precise than might have been desired). If they are not synonymous, the former would appear to be broader than the latter.

    This leads me to the tentative conclusion that the Clerk and Secretary are not covered by the Elector Incompatibility Clause. At first blush, this is disconcerting since, if Senators and Representatives are barred from serving as presidential electors, it seems somewhat anomalous that legislative officers elected by and accountable to these members are not similarly barred. However, I think it can be explained by (1) the relative insignificance of these legislative officers from the Framers’ perspective, which may have caused them to simply be overlooked (no offense intended to my friends who have served in these positions) and (2) the (related) idea that legislative officers are more like employees at will (or perhaps at the time personal servants) than “officers of the United States,” who are bound by commission and oath to their offices in a more formal and permanent way.

Leave a Reply