The Ratifiers' Theory of Officer Accountability (very early, preliminary draft)

32 Pages Posted: 1 Mar 2022 Last revised: 16 Mar 2022

See all articles by Jennifer Mascott

Jennifer Mascott

George Mason University - Antonin Scalia Law School, Faculty

Date Written: March 1, 2022

Abstract

This paper (currently still a preliminary draft) builds on my prior scholarship examining the original public meaning of the terms “Officer” and “Officer of the United States” in the Appointments Clause of Article II of the Constitution, Jennifer L. Mascott, Who Are Officers of the United States?, 73 Stan. L. Rev. 443 (2018). The project will mine public records of the State ratification debates in 1788 to examine the late 18th-century understanding of the role that “officers” were to play in the to-be-constituted federal government and the mechanisms that would ensure accountability to faithful and restrained public service.

That evidence suggests that in addition to the constitutional accountability mechanisms most commonly arising in modern public discourse such as impeachment and removal of federal officials, the ratifiers and 18th-century officials believed that federal authority would be restrained by a collective suite of new constitutional and statutory, along with preexisting common-law, mechanisms. Those mechanisms included the constitutional oaths clauses, the availability of preexisting common-law causes of action against federal officials, the posting of bond by executive officials involved in handling federal funds, statutory conflict-of-interest prohibitions, and transparency requirements imposed on Congress but not the executive.

The ratifiers also repeatedly emphasized their view that electoral accountability was a critical constraint. That view drove the ratifiers to find assurance in their understanding that the U.S. House of Representatives, whose members were subject to reelection every two years, would hold the greatest share of the federal policymaking power. That principal policymaking role is embodied in provisions such as the requirement that all bills raising revenue originate in the House, see U.S. Const. art. I, § 7, cl. 1. Ratification statements suggest that the Executive Branch, in contrast, would have charge over a comparatively small share of domestic policy determinations, which heavily influenced the ratifiers’ willingness to approve a governing document vesting all executive authority in one unitary head of that branch. Rather than posing a threat of corruption, the specter of political accountability arises in ratification debate statements as a critical safeguard and source of comfort. As the Constitution has been amended and government practice has transformed over the years, some of the original accountability mechanisms themselves no longer exist in their 18th-century form, such as the ability of the President to stand for reelection after his second term, see U.S. Const. amend. xxii. Nonetheless, the uncovering of the understanding of the individuals who voted to make the Constitution the governing document of the nation and supreme law over consenting States provides rich context for evaluating the original public meaning of the text and accountability constraints applicable to contemporary federal officials.

Suggested Citation

Mascott, Jennifer, The Ratifiers' Theory of Officer Accountability (very early, preliminary draft) (March 1, 2022). George Mason Legal Studies Research Paper No. LS 22-11, Available at SSRN: https://ssrn.com/abstract=3992050 or http://dx.doi.org/10.2139/ssrn.3992050

Jennifer Mascott (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

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