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12/30/2015

Seth Barrett Tillman on Amar and Lessig
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: A Critique of Two Left-of-Centre Views of the United States Constitution: Professor Akhil Amar & Professor Lawrence Lessig.  From the introduction:

Professor Akhil Amar (Yale Law School) and Professor Lawrence Lessig (Harvard Law School) have both written on the scope of the Constitution’s office-language. Indeed, their individual views on the scope of the Constitution’s office-language are central to (some of) the leading theories they have each popularized. 

Professor Amar has written repeatedly that the Constitution’s “Office ... under the United States”-language (including its textual variants) does not reach members of Congress (although it does encompass the presidency). Amar’s views on this point are central to his understanding of the Presidential Succession Clause and the several impeachment-related clauses in the Constitution. ...

By contrast, Professor Lessig has expressed the view that the Constitution’s Foreign Emoluments Clause, which uses Office ... under the United States-language, does reach members of Congress (and, apparently, the presidency). Lessig’s views on this point are central to his anti-corruption centred analysis of the original Constitution, and to his understanding of the First Amendment and of the permissible bounds of the regulation of political speech. ...

Professor Amar and Professor Lessig cannot both be correct.