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.

Tillman’s Puzzles for Amar (or Who You Callin “Atextual”?)

In this article, Professor Seth Barrett Tillman has six puzzles for Professor Akhil Amar:

Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers?

Puzzle 2. Does Impeachment Extend to Former “Officers”?

Puzzle 3. Who are the “Officers of the United States”?

Puzzle 4. Is the President an “Officer of the United States”?

Puzzle 5. Is the Presidency an “Office . . . under the United States”?

Puzzle 6. Is “Officer of the United States” Coextensive with “Office under the United States”?

Tillman explains the background as follows:

The Constitution of 1787 uses a variety of language in regard to “office” and “officer.”

It makes use of several variants on “office under the United States,” and it also uses “officer of the United States,” “office under the Authority of the United States,” and, sometimes, just “officer” without any modifying terminology. Why did the Framers make these stylistic choices (if a choice it was)?

(And what was the Constitution referring to in Article VI’s obscure “public trust under the United States” language?)

From time to time commentators have suggested answers. One such view was put forward in 1995 by Professors Akhil and Vikram Amar. They opined that each of these categories were indistinguishable: each category referred to Executive Branch and Judicial Branch officers, including the President (and, apparently, the Vice President).

I contest their atextual position.

If you are interested in the “officers” dispute, or if you just want to know where the bodies are buried … this paper is for you. “Six Puzzles for Professor Akhil Amar.” Sometimes the title says all you really need to know…

Over at the Originalism Blog, Professor Michael Ramsey says he may take stab at solving these puzzles. I hope he gets them right, or Gotham City is DOOMED!