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Office Under the United States: A Response to Seth Barrett Tillman and Josh Blackman
John Vlahoplus

Seth Barrett Tillman and Josh Blackman have invited responses to their conclusion that the presidency is not an “Office . . . under the United States” because it is an elected rather than appointed position (at the Volokh Conspiracy, here).  I critiqued the view that the conclusion represents the “original public meaning” of the constitutional text in Evaluating Originalism: Commerce and Emoluments, in the St. John’s Law Review (here).  An excerpt follows (footnotes omitted):

However, other period uses included elected offices.  The Continental Congress entertained a motion in 1785 to disqualify any member of Congress “from being elected by the United States in Congress assembled, to any office of trust or profit, under the said states.”  And George Mason considered the president to be subject to the Foreign Emoluments Clause.

Tillman acknowledges that state law usage of “office under” “seems akin to the Constitution’s,” and that usage included election to offices under a state.  St. George Tucker referred to both election to “any office” and election to “any office under the state” in his famous 1803 American edition of Blackstone’s Commentaries.  In addition, the 1819 Maine Constitution referred to “every person elected . . . to any . . . office under this State.”

Popular usage also included elected offices.  Accounts of the Connecticut charter published by order of Congress referred to both persons “elected to any office in the government” and persons “elected to any office under Government.”  The Pennsylvania governorship was an elected position, and a 1789 news article described a proposal to forbid the governor to “hold any other office under this State.”  A 1790 article referred to the governor as holding an office under the state constitution, and in the same year James Wilson, a founder and sitting United States Supreme Court Justice, described the governor as holding an office under Pennsylvania.  A 1793 New York article refers even more generally to persons “elected to any office under the government of the state or of the United States.”  In addition, a 1797 New York newspaper article described an elected senator as holding “an important office under the government of this state.”

Other uses imply that elected executive offices are offices under state and federal governments.  Maryland’s 1776 Constitution provided that no person

holding any office under the united states, or any of them, or a minister or preacher of the gospel of any denomination, or any person employed in the regular land service, or marine, of this or the united states, shall have a seat in the general assembly, or the council of this state.

Given the breadth of the disqualifications, it would be fanciful to interpret “office under the united states, or any of them” to allow holders of elected executive offices of other domestic governments to sit in the Maryland general assembly or council.  Moreover, usage in the First Congress suggests that elected executive offices are offices for purposes of every constitutional provision.  Rep. Sedgwick described the vice president as “an officer by the constitution,” and James Madison advised that “[w]e are to consider his appointment as part of the constitution.” 

Madison’s use of “appointment” for the elected position of vice president counsels against drawing fine distinctions between elected and appointed offices in public meaning constitutional interpretation where the relevant provision does not include either word. In 1789, the New York legislature referred to George Washington’s “election to” and “appointment to” the presidency in the same sentence.  The governor and council of North Carolina wrote to President Washington that his “appointment to the first office in the union” would no doubt accelerate the state’s ratification of the Constitution.  And an 1801 New York article defended officeholders of the Clinton family against charges of oligarchy by pointing out that they held elected offices under the state constitution.

Finally, Tillman provides no evidence that anyone in “the American public” believed that “office under” was a term of art for whose meaning they should defer to lawyers.  He does not cite a single public use in which anyone—Founder, drafter, ratifier or other—links the constitutional term and the British legal term.  This contrasts with the Constitution’s term “natural born,” for example, which has numerous founding-era uses linked to British uses of the term.

How does Tillman conclude that “office under” incorporates the British term of art despite significant contrary public usage and the absence of public usage linking them? This article suggests that he exercises legal judgment to determine founding-era doctrine—his originalism, like Sachs’s, “is just ordinary lawyer’s work.”

Madison’s comparison of the vice president and state lieutenant governors is also instructive.  When the First Congress debated the pay of vice presidents in 1789, some argued that they should be paid like lieutenant governors, some of whom received pay only upon attendance and others no pay at all.  Madison objected that that would be unfair.  The vice president would have to reside far from home to be available to replace the president if needed, whereas “[n]o officer under a State Government can be so far removed as to make it inconvenient to be called upon when his services are required; so that, if he serve without a salary, it may be he can reside at home, and pursue his domestic business . . .” (here).  All lieutenant governors were elected at the time.  In Madison’s home state of Virginia, for example, the Council of State elected the lieutenant governor.  And Madison described the lieutenant governor as an officer under the state government. 

But we don’t interpret the Constitution by tallying usage by Founders or newspapers any more than tallying the intentions of Founders or ratifiers.  We interpret it by applying multiple modes of legal analysis, including normative ones, as Tillman and Blackman do in their post.  They make a strong case for their conclusion, which may be correct despite the wealth of contrary public usage.