Conference Contribution Details
Mandatory Fields
Josh Blackman & Tillman, Seth Barrett
Eleventh Annual Originalism: Works-in-Progress Conference (Feb. 21, 2020)
Offices “of,” “under,” and “under the authority” of the United States
San Diego, California
Oral Presentation
2020
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1
Optional Fields
21-FEB-20
21-FEB-20
This is my co-authored contribution for a conference on Feb 21, 2020. My co-authored abstract was peer reviewed by Professor Michael Rappaport (and his colleagues) and selected in a competitive process. The Constitution uses different language to refer to various offices and officers . In four clauses, the Constitution uses the phrase “Officers of the United States”: the Appointments Clause, the Impeachment Clause, the Oaths Clause, and the Commission Clause. In four clauses, the Constitution invokes, with some variants, the phrase “Office . . . under the United States”: the Incompatibility Clause, the Disqualification Clause, the Elector Incompatibility Clause, and the Foreign Emoluments Clause. The Constitution uses the phrase “Office under the Authority of the United States” in the Ineligibility or Sinecure Clause. Finally, the Religious Test Clause uses the phrase “Office or Public Trust under the United States.” In a 1995 Stanford Law Review article, Professor Akhil Reed Amar and Dean Vikram David Amar wrote that the different variants of office and officer language, “[a]s a textual matter . . . seemingly describe[] the same stations (apart from the civil/military distinction)—the modifying terms ‘of,’ ‘under,’ and ‘under the Authority of’ are essentially synonymous.” The Amars did not actually provide any argument or evidence in support of their textual position--it was more of an operating intuition. Starting in 2008, one of us (Tillman) began what became a lengthy project to show that the Amars’ assumption was contestable, and that as a matter of original public meaning, the Constitution’s varying terminology for office and for officer were not “synonymous.” Several years later, the other one of us (Blackman) reviewed Tillman’s work, and found it extremely persuasive. This debate remained little more than an academic curiosity, with the exception of some substantial implications for Professor Zephyr Teachout’s scholarship surrounding the Constitution’s purported anti-corruption principle. However, after the 2016 election, it looked
Center for the Study of Constitutional Originalism