The Annals of Congress, the Original Public Meaning of the Succession Clause, and the Problem of Constitutional Memory

49 Pages Posted: 18 Dec 2009 Last revised: 2 Jul 2011

Seth Barrett Tillman

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law

Date Written: February 14, 2011

Abstract

The Constitution contains several clauses referring to government “offices” and “officers.” The precise phrasing used in the different clauses is similar but textually distinct. In several recent publications, I have that argued that these fine textual distinctions were purposely drafted by Gouverneur Morris (the Committee of Style’s primary draftsperson) and by the other members of the Federal Convention and that they were also meaningful to the Constitution’s intended audience, even if such distinctions usually pass without analysis or even notice by modern commentators. The purpose of this short Article is not to rehash that debate, or even to present a further substantial defense of the ideas already presented on several prior occasions. Instead, the purpose of this Article is to explain one reason why modern scholarship in this area failed to fully engage the Constitution’s text. My answer is a simple one. Modern scholars treats the Annals of Congress as an official record of contemporaneous congressional debate. That was and is a mistake. Nor is it a mistake limited to those scholars researching obscure constitutional word-choice relating to “office” and “officer.” It is a mistake made by the widest body of scholars, left or right or center, researching virtually each and every provision of the original Constitution of 1787 and its antebellum amendments. My topic here is a narrow one, but it has implications for constitutional scholarship generally.


Seth Barrett Tillman, The Annals of Congress, the Original Public Meaning of the Succession Clause, and the Problem of Constitutional Memory (Dec. 18, 2009) (unpublished manuscript) (on file with author) (with appendices).

Suggested Citation

Tillman, Seth Barrett, The Annals of Congress, the Original Public Meaning of the Succession Clause, and the Problem of Constitutional Memory (February 14, 2011). Available at SSRN: https://ssrn.com/abstract=1524008 or http://dx.doi.org/10.2139/ssrn.1524008

Seth Barrett Tillman (Contact Author)

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law ( email )

Ollscoil na hÉireann, Má Nuad
New House (#306)
Maynooth, County Kildare
Ireland
(353) (0) 1474-7216 (Phone)

HOME PAGE: http://law.nuim.ie/staff/mr-seth-barrett-tillman

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