[This post is co-authored with Seth Barrett Tillman.]
Last week we shared the third-installment in our ten-part series on the offices and officers of the Constitution. Here, we will share the near-final draft of the fourth installment: Offices and Officers of the Constitution, Part IV: The “Office . . . under the United States” Drafting Convention. The phrase “Office . . . under the United States” is used in four provisions of the Constitution of 1788: the Elector Incompatibility Clause, the Impeachment Disqualification Clause, the Incompatibility Clause, and the Foreign Emoluments Clause. Tillman has written about this language since 2008, and we have written about the phrase “Office . . . under the United States” during the four years of the Foreign Emoluments Clause cases. This article provides a synthesis of some of that work.
Here is the abstract:
This Article is the fourth installment of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. The first installment introduced the series. The second installment identified four approaches to understand the Constitution’s divergent “office”- and “officer”-language. The third installment analyzed the phrase “Officers of the United States,” which is used in the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Oath or Affirmation Clause. This fourth installment will trace the history of the “Office . . . under the United States” drafting convention.
This Article proceeds in eight sections. Section I introduces the British drafting convention: “Office under the Crown.” For the last three centuries, this phrase has referred to appointed positions. And, in our view, this English and British legal tradition crossed the Atlantic—ultimately becoming part of a wider Anglo-American legal tradition. Section II considers the use of the “Office . . . under” drafting convention in the Articles of Confederation, which was ratified in 1781. Section III turns to the four clauses in the Constitution that use the phrase “Office . . . under the United States,” albeit with some variations: the Elector Incompatibility Clause, the Impeachment Disqualification Clause, the Incompatibility Clause, and the Foreign Emoluments Clause. In our view, the phrase “Office . . . under the United States” refers to appointed positions in the Executive and Judicial Branches, as well as non-apex appointed positions in the Legislative Branch.
Section IV analyzes several reports prepared during President Washington’s administration by the Treasury Department under its first Secretary of the Treasury, Alexander Hamilton. These documents support our position: the British “Office . . . under” drafting convention, which was used to distinguish between appointed and elected positions, had been adopted by Hamilton, a framer, and some of his contemporaries. Section V reviews an anti-bribery statute enacted by the first Congress. This 1790 statute, and other similar early federal statutes, provide further support for our position that the First Congress and early congresses adhered to the British “Office under” drafting convention. Section VI considers how the phrase “Office under the United States” was used during the American Civil War. At this time, more than seven decades after the framing, Hamilton’s understanding of the “Office . . . under” drafting convention, as well as the documents he and his department had drafted, were still remembered and remained influential. Section VII surveys other nineteenth-century commentators who recognized the “Office . . . under” drafting convention, including Joseph Story. Section VIII revisits an 1809 state legislative debate concerning the 1776 North Carolina Constitution. Some participants in that debate, including a future state supreme court justice, recognized that the state constitution’s “office”-language distinguished between appointed and elected positions.
These eight parts support our position: in the Anglo-American legal tradition, the phrase “Office under the . . .” was, and remains, a commonly-used drafting convention that refers to appointed officers. This phrase does not refer to elected officials.
In the article, we discuss Alexander’s Hamilton 1793 Complete Report. This document was the subject of some attention during the Foreign Emoluments Clauses litigation. Part IV.C of the article, starting on p. 497, walks through the Hamilton imbroglio in some depth.
Part II of our article also provides a parsing of several provisions from the Articles of Confederation, starting on p. 461.
The fifth installment, will focus in particular on the four provisions in the Constitution of 1788 using the “Office . . . under the United States” drafting convention: Elector Incompatibility Clause, the Impeachment Disqualification Clause, the Incompatibility Clause, and the Foreign Emoluments Clause.