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Seth Barrett Tillman
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02/21/2018

A Response to Professor Nourse’s "Reclaiming the Constitutional Text from Originalism," Part 2
Seth Barrett Tillman

[Note:  This is Part 2 of my response to Professor Nourse's article Reclaiming the Constitutional Text from Originalism: The Case of Executive Power.  Part 1 is here.]

This is not the place for a full defense of my views regarding the Constitution’s divergent Office-language. That has been done several times elsewhere. Here, I will respond to Nourse’s charge that I have engaged in intellectual “gerrymandering.” What is meant by this charge? Nourse provides helpful examples. Article II, Section 1, Clause 1, the Executive Power Vesting Clause, states: “The executive power shall be vested in a President of the United States of America.” In reading this clause, in his Morrison v. Olson dissent, Justice Scalia has stated: “this [language] does not mean some of the executive power, but all of the executive power.” Scalia, in effect, is changing the language of the clause to: “All the executive power shall be vested in a President of the United States of America.” Nourse challenges this type of textual enrichment as unsupported by the text. In other words, such enrichment is both reliant on unsupported assumptions of coherence across the Constitution’s text and reliant on unstated preferences of the interpreter. I agree. Nourse also objects to: “intratextual arguments . . . that come from excising particular words from one ‘home’ clause and moving that enrichment to a different ‘receiving’ clause, where the term takes on a new meaning.” I agree with this too: such a strategy poses dangers.

Consider the Impeachment Clause: “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Now some read this clause as suggesting that the clause’s use of Office, standing alone, is equivalent to the clause’s “Officers of the United States” language. In other words, such interpreters engage in textual enrichment. Such people read the clause either as:

The President, Vice President and all Civil Officers shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

or

The President, Vice President and all Civil Officers of the United States, shall be removed from [the] Office of the United States [that they are holding] on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Others assume redundancy—they assume that the latter “Officers of the United States” language also covers the presidency and vice presidency. They read the clause as:

The President, Vice President and all other Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

All this textual enrichment—assuming Office is coextensive Officer of the United States—and assuming Officers of the United States also encompasses the President and Vice President—relies on just the sort of assumptions and inferences Nourse objects to. So do I. So does Story, as discussed in Part 1 of my response. The meanings above are textually possible. It is also textually possible, as Story has stated, that the President and Vice President hold “office,” but they are not encompassed by the category of “Officers of the United States” or “Civil Officers of the United States.” The clause-bound text does not answer this question.

Let’s look at another clause: the Elector Incompatibility Clause (art. II, § 1, cl. 2). It states: “[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector” (emphasis added). Some think the clause uses redundant language. They think the clause means: “[N]o Senator or Representative, or Person holding any other Office of Trust or Profit under the United States, shall be appointed an Elector.” In other words, they think the clause’s “Office of Trust or Profit under the United States” language extends to senators and representatives. The positions of senator and representatives need not have been separately listed as they were included by the clause’s Office-language. Others think the Constitution’s divergent office language does not extend to members of Congress. Is the clause’s language redundant? That question cannot be answered from the text of the Elector Incompatibility Clause (standing alone). There is a second question. Does the clause’s “Office of Trust or Profit under the United States” language extend to the President and Vice President? Here too, the text of the clause (standing alone) supplies no determinate answer. The fact that some elected federal positions were listed (Senators and Representatives), but not others (President and Vice President), might mean the latter positions are excluded from the scope of the clause. But such an inference is not obvious.

Finally, there is the Foreign Emoluments Clause. Again, the clause states:

[N]o Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

How does Nourse read the clause?

The President, Vice President, and no Person holding any other Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Here it is Nourse that is engaged in just the sort of pragmatic enrichment she decries in Justice Scalia (who, you will remember, added “all” to the Executive Power Vesting Clause). Talk about unstated assumptions and unstated preferences! Not only does Nourse not recognize the clause’s ambiguity in regard to the presidency, she affirmatively states (pp. 40-41) that the contrary reading (i.e., the reading which excludes the President—a position not expressly mentioned by the clause—from the scope of the clause) is “verging-on-the-silly.”

Nourse’s sole defense of her interpretation of the Foreign Emoluments Clause—where she pragmatically enriches the text by adding language about the presidency—is that: “Article II, Section 4 provides that the President ‘shall be removed from Office by Impeachment’ for ‘high crimes and [m]isdemeanors.’ [Likewise,] Article I, Section 3, Clause 7 provides that the ‘Judgement in cases of Impeachment shall not extend further than to removal from Office’” (p. 28). Here too, Nourse is engaged in just the sort of weak intratextualism she decries in others. She assumes that “Office,” standing alone, in the Impeachment Clause, and “Office,” standing alone, in the Disqualification Clause are co-extensive or sufficiently similar with the Foreign Emoluments Clause’s “Office of Profit of Trust under [the United States]” language to make comparison and enrichment meaningful. I do not suggest that such a view is stupid; it is not. Others have held this view in the past. I do suggest that Nourse’s interpretation is not the only possible one. The text is not determinate. There are competing reasonable views. Given that competing reasonable views are consistent with the clause’s text, I have turned to historical practice in the Federalist Era regarding diplomatic gifts to presidents, the Hamilton document, and other contemporaneous and roughly contemporaneous extrinsic evidence. But the merits of that debate are beside the primary point. The primary point I am making here is that Nourse does not understand my position, and that in seeking to argue the contrary, she has engaged in just the sort of interpretive strategies that she says she opposes.