Conference Paper: Six Puzzles for Professor Akhil Amar
Loyola University of Chicago Law School, Fourth Annual Constitutional Law Colloquium Conference Paper 1-30 (Nov. 1, 2013) (peer reviewed)
36 Pages Posted: 11 Nov 2012 Last revised: 15 May 2015
Date Written: March 4, 2013
The Constitution of 1787 uses a variety of language in regard to "office" and "officer."
It makes use of several variants on "office under the United States," and it also uses "officer of the United States," "office under the Authority of the United States," and, sometimes, just "officer" without any modifying terminology. Why did the Framers make these stylistic choices (if a choice it was)?
(And what was the Constitution referring to in Article VI's obscure "public trust under the United States" language?)
From time to time commentators have suggested answers. One such view was put forward in 1995 by Professors Akhil and Vikram Amar. They opined that each of these categories were indistinguishable: each category referred to Executive Branch and Judicial Branch officers, including the President (and, apparently, the Vice President).
I contest their atextual position.
If you are interested in the "officers" dispute, or if you just want to know where the bodies are buried...this paper is for you. "Six Puzzles for Professor Akhil Amar." Sometimes the title says all you really need to know.
INTRODUCTION: Dear Professor Amar,
Here are six constitutional puzzles for your consideration. I would be very pleased if you responded, but I do not expect you to do so. I am sure you are very busy. Still, many, many people have read your books and articles, and heard your lectures and podcasts. And some of them are almost as smart and prolific (at least, collectively) as you are. So, even if you will not, perhaps, one or more of your many colleagues and students, readers and listeners would like to respond to one or more of these challenges.
Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers? Puzzle 2. Does Impeachment Extend to Former “Officers”? Puzzle 3. Who are the “Officers of the United States”? Puzzle 4. Is the President an “Officer of the United States”? Puzzle 5. Is the Presidency an “Office...under the United States”? Puzzle 6. Is “Officer of the United States” Coextensive with “Office under the United States”?
...with the author's proposed answer key.
The version now on line has been revised, clarified, and expanded.
Suggested Citation: Suggested Citation