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A Response to Professor Nourse’s "Reclaiming the Constitutional Text from Originalism," Part 1
Seth Barrett Tillman

[Note: This post is a section of a forthcoming paper in South Texas Law Review, where I respond to several of my critics.  A longer version of this response is posted on SSRN, here.]

Professor Victoria F. Nourse recently published in the California Law Review the article Reclaiming the Constitutional Text from Originalism: The Case of Executive Power, in which she criticized my work on the emoluments clauses.  She wrote (pp. 27-28, footnotes omitted):

At least one constitutional textualist/originalist argued that the [foreign emoluments] clause did not even apply to the President because the clause says “Office,” and based on a survey of the use of the term “office” throughout the Constitution, the term “office” typically applies to unelected members of the executive branch, not the President. He claimed that many other scholars, originalists and others, agreed with the position that “office” means the same thing throughout the Constitution. …

First, let us take the argument that the clause does not apply to the President. This is a classic form of textual gerrymandering—an argument that takes text out of context to create a new meaning. Let us assume that, in some parts of the Constitution, the term “office” means a lower ranking, unelected, member of the [E]xecutive [B]ranch. The problem comes in moving that definition from one part of the Constitution (call this the home clause) to another part (the receiving clause). Once isolated from the home clause, the term “office” is recontextualized within the receiving clause. If the home clause only covers unelected officials, then the receiving clause is now deemed to cover unelected officials. Such inferences, however, can rewrite the Constitution. The transferred home context effectively amends the new receiving context—the Foreign Emoluments Clause—by inserting the term “unelected.” Of course, that is not the actual text of the Constitution. The term “unelected” does not exist in the Foreign Emoluments Clause; it has been added by the interpreter.

Under “analytic textualism,” one asks whether a pragmatic addition such as “unelected” is falsified by any other text in the Constitution. And, yes, there is powerful evidence that the President can be covered by the term “Office.” No one doubts that the President can be impeached. And so, no one should doubt that the term “Office” in the Foreign Emoluments Clause can easily be interpreted to cover an elected official like the President. Article II, Section 4 provides that the President “shall be removed from Office by Impeachment” for “high crimes and [m]isdemeanors.” Article I, Section 3, Clause 7 provides that the “Judgement in cases of Impeachment shall not extend further than to removal from Office.” This falsification procedure allows us to see that the claimed textual enrichment is not the “only possible” interpretation; in fact, it is not a terribly plausible enrichment at all: even President Trump’s lawyers now admit that the Foreign Emoluments Clause does in fact cover the President.

I trust the fair minded reader and, in time, even Professor Nourse, will not object to my stating that Nourse does not actually understand my position in regard to the Constitution’s divergent Office-language. Because she does not understand it, she fails to fairly characterize it. Although, I wholeheartedly agree with the textual falsification method put forward by Professor Nourse, she has not actually falsified anything I have argued. It might help the reader if I point out that at no point does Nourse ever quote any actual language from any of my publications where I take the positions which she incorrectly asserts are mine.

First, Professor Nourse states that my view is that the term “Office,” as used in the Constitution, does not extend to the President. I have made no such claim. After all, such a position is a nonstarter: the Constitution (Art. II, Sec. 1) squarely states the President holds an “office.” What could be more clear? Rather, my view is that the President does not hold an “office . . . under the United States.”  (My position is aptly summarized by Professor William Baude on Jotwell, including a helpful chart.)

Second, Nourse states that my view is that the term “Office,” as used in the Constitution, “applies to unelected members of the executive branch.” I have made no such claim. My view is that Office and officer, standing alone without modifiers, include those holding office under the United States (i.e., appointed positions in all three branches) as well as those holding certain elected positions: e.g., President, Speaker of the House, and Senate President Pro Tem. (My view is that rank-and-file members of Congress, in the House and Senate, are not encompassed by the word “Office,” as used in the Constitution.)

Third, after telling her readers that my position is that “Office” means the same throughout the Constitution, Nourse tells her readers that I claim to have found support for my position among other scholars who take the same position. This also is not correct. I report the position others to distinguish my position from their position. These other scholars have argued that the Constitution’s divergent Office-language is coextensive. I disagree with that position. My position is that divergent language accommodates different meanings.

Fourth, Nourse states that “This falsification procedure [which she puts forward] allows us to see that the claimed textual enrichment [put by forward by Tillman] is not the ‘only possible’ interpretation . . . .” I ask: Why is “only possible” in quotation marks? Who is she quoting? Given that the only scholarship she is discussing in that section of her paper is my scholarship, the reader is likely to think I am being quoted. Nourse cites only a single Tillman-authored publication, and I do not use the quoted language in my article.

For what it is worth, I do not believe that by interpreting the text of the Constitution, standing alone, one ought to conclude that there is only a single possible interpretation in regard to the Constitution’s divergent Office-language. In fact, I have repeatedly made a very different claim. In my Northwestern University Law Review article, which is my only publication actually cited by Nourse, I stated:

I do not suggest that the Constitution’s text, drafting history, and ratification debates are free from all ambiguity on the meaning of Office . . . under the United States. Fortunately, we can turn to two incidents from President George Washington’s first Administration to understand the meaning of this somewhat opaque phrase.

My position is that where the constitutional text is ambiguous, one turns to early practice and history. I would add that the practices of George Washington and his administration, and that of the First Congress are entitled to special consideration. My methodological outlook is hardly an outlier.

Finally, Nourse concludes that my use of intratextualism (with its assumptions of coherence) is methodologically unsound, and that my conclusion in regard to the scope or reach of the Foreign Emoluments Clause is not “terribly plausible.” My response, beyond what I have written above, is that my using intratextualism in this fashion predates my publications, predates original public meaning originalism, and even predates original intent originalism. It is far older.

In his Commentaries on the Constitution, Justice Joseph Story wrote:

[T]he [Impeachment] [C]lause of the Constitution now under consideration does not even affect to consider the[] [President and Vice President] officers of the United States. It says, “the President, Vice-President, and all civil officers (not all other civil officers) shall be removed,” &c. The language of the clause, therefore, would rather lead to the conclusion that they were enumerated, as contradistinguished from, rather than as included in the description of civil officers of the United States. Other clauses of the Constitution would seem to favor the same result, particularly the clause respecting appointment of officers of the United States by the executive, who is to “commission all the officers of the United States;” and the sixth section of the first article which declares that “no person holding any office under the United States shall be a member of either house during his continuance in office;” . . . .

In short, Story concludes that the President is neither an officer of the United States nor holds an Office under the United States (which is a superset of the Foreign Emoluments Clause’s more limited Office of Profit or Trust under the United States-language). At the very least, Story thinks this position is plausible and supported by the text of the Constitution. Indeed, although not discussed by Story, the drafting history of the Impeachment Clause also confirms Story’s interpretation: an early draft of the Impeachment Clause applied to “other Civil officers of the U.S.,” but the “other” was dropped by the Committee of Style.  Nor was Story alone—a fair number of later commentators followed Story’s lead.  Nourse says (in effect that) Story’s view (a view with which I agree) is not plausible. But saying that it is implausible does not make it so; nor does her more strongly condemnatory language.