Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae Judicial Education Project’s Response to Amici Curiae by Certain Legal Historians

Abstract

In 1792, Alexander Hamilton was directed by the Senate to provide a list of the “emoluments” of “every person holding any civil office or employment under the United States.” He sent a response in 1793, which we refer to as The Complete Report. It did not list the President, Vice President, or other elected officials. The 1793 Complete Report is a contemporaneous construction of substantially the same language at issue in the Constitution’s Foreign Emoluments Clause. There is a second document: The Condensed Report. That document was drafted based in large part on The Complete Report. The Tillman Amicus (“Amicus”) brief explained that this latter report was not signed by Alexander Hamilton, it was not dated, and it was drafted by an unknown Senate functionary. In other words, its precise provenance remains unknown in the sense that we simply cannot identify the specific person who drafted it.

The Brief of Amicus Curiae by Certain Legal Historians contends that Tillman’s “brief overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material.” The Legal Historians allege that that The Condensed Report was signed by Hamilton and it is equally authentic with the original document, The Complete Report. The Legal Historians Brief is plainly wrong. The Condensed Report is nothing more than a scrivener’s copy of The Complete Report, drafted after Alexander Hamilton’s death. In ruling on whether the President holds “Office... under the United States,” this Court should rely on The Complete Report, which was signed by Hamilton, and not the unsigned and undated Condensed Report.

This memorandum of law is supported by 5 expert declarations along with Tillman's declaration. Hypertext links point to the 6 declarations.