Offices and Officers of the Constitution, Part II: The Four Approaches

110 Pages Posted: 1 Feb 2022 Last revised: 12 Oct 2022

See all articles by Seth Barrett Tillman

Seth Barrett Tillman

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

Josh Blackman

South Texas College of Law Houston

Date Written: January 30, 2022

Abstract

This Article is the second 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. In this second installment, we will identify four approaches to understand the Constitution’s divergent “office”- and “officer”-language.

First, under Approach #1, the Intermediate View, the Constitution’s references to “offices” and “officers” extend exclusively to positions in the Judicial Branch and in the Executive Branch—whether appointed or elected. But the Constitution’s references to “offices” and “officers” do not extend to positions in the Legislative Branch—whether appointed or elected.

Second, under Approach #2, the Maximalist View, the Constitution’s divergent “office”- and “officer”-language is used synonymously. And, under this approach, these phrases refer to positions in all three branches, whether appointed or elected.

Third, under Approach #3, the Minimalist View, the Constitution’s divergent “office”- and “officer”-language has different meanings. The phrase “Officers of the United States” extends exclusively to appointed positions in the Executive and Judicial Branches. And the phrase “Office . . . under the United States” extends exclusively to appointed positions in all three branches. (The ellipses refer to different words the Framers placed after office but before under: “profit,” “trust,” and/or “honor”). For more than a decade, Tillman has advanced Approach #3. Blackman was first piqued by Tillman’s position shortly after he became a law professor, and he was thereafter persuaded.

Finally, we consider Approach #4, which we refer to as the Clause-Bound View. Under this approach, the “office”- and “officer”-language in each provision of the Constitution should be interpreted in isolation, without regard to how the same or similar language is used elsewhere in the Constitution. For example, the phrase “Officers of the United States” in one clause may have a different meaning than the phrase “Officers of the United States” in another clause.

This Article—at more than 30,000 words in length—is incomplete. Here, we simply introduce our taxonomy. If all goes to plan, the planned ten-part series will be completed circa Spring 2023. At that point, our project will be substantially complete. And, we hope, any remaining significant lingering questions will have been answered.

Keywords: Offices, Officers, Constitution, Office under the United States, Officers of the United States, Office under the Authority of the United States, Public Trusts

Suggested Citation

Tillman, Seth Barrett and Blackman, Josh, Offices and Officers of the Constitution, Part II: The Four Approaches (January 30, 2022). 61(3) S. TEX. L. REV. 321–429 (2021), Available at SSRN: https://ssrn.com/abstract=4021548

Seth Barrett Tillman

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

Josh Blackman (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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