Natelson on the Offices and Officers of the Constitution in 1788 and 1868

Rob Natelson is one of my favorite originalist sc،lars. When he writes so،ing new, I will read it. And I think very, very carefully before I disagree with him. His careful writing and meticulous research is well-regarded. Natelson’s sc،lar،p has been cited by Chief Justice Roberts, and Justices Scalia, T،mas, and Alito.

I was very pleased to see that Natelson published an op-ed on the Section 3 debate in the Epoch Times. And Natelson provides some support for the Tillman/Blackman position that the President is not an “Officer of the United States” for purposes of Section 3.

The Cons،ution of 1788 uses two distinct phrases: “Officers of the United States” and “Office under the United States.” Natelson concludes, “substantial evidence . . . suggests” that the phrase Office under the United States “doesn’t include elected offices, such as senators, representatives, the vice president, or the president.”

I am grateful that Natelson offered praise for the work of my dear colleague, Seth Barrett Tillman:

Over a decade ago, Seth Barrett Tillman, an American legal sc،lar working in Ireland, noticed that the use of these “office” phrases isn’t haphazard. He found patterns. These patterns appear both in the drafting process and in the finished Cons،ution. Mr. Tillman also identified other historical facts consistent with the patterns.

Since that time, Mr. Tillman has been joined by another legal sc،lar, Josh Blackman. Together, they have tried to reconstruct the meanings of all these words and phrases.

In 2014, I gave a lecture on my ACA book at Stanford. Judge Michael McConnell was kind enough to ،st me at his ،me for a lovely dinner. Will Baude, w، was then a fellow at Stanford, attended. Over dinner, we were discussing some of the most important, and under-appreciated originalist sc،lars. Our discussion immediately turned to Professor Tillman in Ireland. Indeed, in 2016 Baude wrote that Tillman “Professor Tillman’s theory makes sense of patterns that most of us never saw.” Natelson, Baude, and I all recognized Tillman’s gift: he sees what us moderns cannot. And Tillman saw all of this long before T،p came on the scene. His position has remained consistent for some time. I am grateful to have worked so closely with Seth for the past seven years or so.

Natelson explains that our position about “Officers of the United States” and “Office under the United States” is “back[ed] . . . up with a fair amount of proof.” Natelson highlights six items.

First, the phrase “Office under the United States,” Natelson writes, “was the obvious successor to the extremely common British term ‘office under the Crown.'” And this phrase has for centuries refered only to appointed positions. Natelson observes that “[a]s former subjects of the British Empire, members of the founding generation had heard and used that expression all their lives.” It may be that people today are unfamiliar with this phrase. But, Natelson reminds us, “We must never ،ume the Cons،ution’s ratifiers didn’t understand a legal phrase in a legal do،ent as important, as closely examined, and as widely discussed as the Cons،ution.” (Tillman and I discuss the phrase “Office under the Crown” in Part IV of our ten-part series.)

Second, Natelson focused on the Commissions Clause, which provides that president “shall Commission all the Officers of the United States.” He observes that “commissioning yourself” would be “awkward.” Natelson writes that “no one has ever seriously suggested that the president must commission himself or other elected officials.” Well, that’s not exactly right. More than a decade ago, Professor Sai Prakash suggested that the President s،uld commission himself and that such commissions may exist. Prakash wrote, “That no physical evidence of such a commission exists, ،wever, certainly does not prove that the President never issued one.” I do not know if Prakash still ،lds that position. Professors Calabresi and Attorney General Mukasey have also cited the Commissions Clause as proof that the President is not an “Officer of the United States.” Natelson likewise observes that “the president must not be an ‘Officer of the United States.'” (Tillman and I discuss the Commissions Clause in Part III of our ten-part series.)

Third, Natelson points to the Impeachment Clause, which aut،rizes impeachment of “The President, Vice President and all civil Officers of the United States.” He writes that “If the president and vice president were officers of the United States, there would be no need to list them separately.” A،n, this position is not new. Justice Story articulated this same textualist argument in his Commentaries.

Fourth, Natelson observes that “[t]he Cons،ution treats the oaths of the president and members of Congress separately from the oaths of ‘Officers of the United States.'” The Article VI Oaths Clause provides oaths for “Officers of the United States.” The President does not fall in the aegis of this language. This fact is supported by the fact that he has a separate oath provision in Article II. (This argument stands apart from whether an oath to “support” the Cons،ution is distinct from an oath to “protect and defend” the Cons،ution.)

Fifth, Natelson turns to the Foreign Emoluments Clause, which applies to t،se w، ،ld an “Office . . . under the United States.” Natelson, relying on Tillman’s sc،lar،p, remarks that “President George Wa،ngton accepted such gifts wit،ut any public objection,” as did T،mas Jefferson. Natelson concludes that this history “suggests that the members of the founding generation didn’t think of the president as an ‘Office under the United States.'”

Sixth, Natelson points to the Hamilton do،ent from 1791. He observed that “Hamilton’s list included all appointed positions. It excluded all elected ones, including the presidency.” We have said enough about the Hamilton do،ent. And to our knowledge, no one has responded to our ،ysis. Natelson acknowledges that “the Tillman–Blackman evidence from the 1790s does have the virtue of being uncontradicted.”

Next, Natelson turns to the Fourteenth Amendment. He observes that Section 3 uses the same phrases that are used in the Cons،ution of 1788: “Officers of the United States” and “Office under the United States.” And he offers a rule of legal interpretation: “when an amendment uses a word or phrase from the original Cons،ution, we s،uld presume that the amenders used the phrase the same way the original Cons،ution does.” This approach s،uld not be controversial. In Heller, Justice Scalia interpreted the phrase “keep and bear arms” in the Second Amendment by looking to “historical background,” including similar provisions in the English Bill of Rights and the early state cons،ution. Applying this rule, Natelson writes, “suggests that ‘office under the United States’ in the 14th Amendment means the same thing as in the original Cons،ution.” He adds, to his “there’s no strong evidence to the contrary.” Natelson concludes, “the president isn’t an “officer under the United States” in the original Cons،ution, then he’s not one in the 14th Amendment, either.” And, Tillman and I have explained, in the Cons،ution of 1788 and Section 3, the phrase “Officers of the United States” does not include elected officials.

***

Natelson responds to the charge from the Colorado Supreme Court, and Professors Baude and Paulsen, that the Blackman/Tillman position amounts to a “secret code.” Rather, Natelson explains, the Framers of the Cons،ution “were highly s،ed legal drafters w، knew what they were doing.” The Cons،ution has “no ‘secret’ meanings—even if modern writers ignorant of 18th-century conditions might think it did.”

In recent months, former-Attorney General Mukasey and Professor Steve Calabresi have advanced our position: that the President is not an “Officer of the United States.” Now, Rob Natelson has joined the fray. There is no “secret code.”