Coda on Dual Service in Congress and as VP: Seth Barrett Tillman Replies

Note from Mike Dorf:  In response to the doubts I raised about his argument concerning the constitutionality of Rep. Ryan (or anyone else) simultaneously serving in the House and as VP, Seth Barrett Tillman has written the following reply.  In addition to addressing that concrete question, it nicely frames some important questions in constitutional interpretation.  Now here's Seth.

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Professor Dorf and I agree on (at least) one thing. The position – that the President and Vice President are not Offices under the United States (as that expression is used in the Incompatibility Clause) – is not compelled by the text of the Constitution. The text-reliant position is strengthened by various post-1789 documents and incidents, including, among others:

(i) President Washington’s conduct in regard to accepting both the key to the Bastille from LaFayette (1790) and the Louis XVI portrait from the French Ambassador (1791);

(ii) Secretary Hamilton’s responsive correspondence to the United States Senate (1793);

(iii) Justice Chase’s letter to Chief Justice Marshall (1802);

(iv) Justice Story’s Commentaries (1833) and McKnight’s treatise on election law (1878);

(v) The absence of a continuous tradition of President’s issuing commissions to their successors in office and to Vice Presidents (1789-present); and,

(vi) Justice Miller’s opinion for the Supreme Court in United States v. Mouat (1888); etc.

The post-1789 historical case improves the textual position. Admittedly, it does not quite reach, what the British tabloids call, the stand-up-in-court-proof-of-adultery-in-the-royal-bedroom-through-photographic-evidence standard.

Because the pure text-reliant position is (arguably) insufficient, we turn to history. Historical material buttresses the text-reliant position, but it still leaves Professor Dorf (and many, many others) with fairly-held residual doubts. What then? The interpreter at that point turns to other modalities or strategies of interpretation. The modern approach is to turn to what is called constitutional structure (at least where the text is less than what is reasonably clear).

Professor Dorf writes: “there is, in my view, enough wiggle room for the text to support what may turn out to be an ahistorical view.” My problem with Michael’s position is not that he is wrong; he is not wrong. But, that his statement lacks his customary precision. His interpretive strategy – embracing structuralism absent clear text – is open to (at least) several different interpretations (independent of what he personally intended). In other words, I am responding to his prior post’s original public meaning, not his (secretly held or otherwise ambiguous) original intent.

(I) Structuralism As A Solution to Bona Fidé Ambiguity. Here the interpreter acknowledges that the key text – Office under the United States in the Incompatibility Clause – is controlling. The interpreter’s problem is that the text was ambiguous in 1789. Ambiguity here may mean either: (A) it was subject to multiple fairly held understandings in 1789; or (B) no one really thought about it in 1789, but if they had, it would have been subject to multiple fairly held understandings. Structure allows the interpreter to settle on one of those fairly held meanings by importing into the Incompatibility Clause normative principles arising in connection with related constitutional provisions. These other provisions are helpful because they (unlike the Incompatibility Clause) speak with clarity.

Michael cannot rely on this strategy in regard to the operative language here. Why? The primary reason is that ambiguity is not something that one can merely assert. It is an empirical claim which itself requires some evidence. He has not put any evidence forward that in 1789 the meaning of Office under the United States (as used in the Incompatibility Clause) was in doubt.

There is also some good reason to believe that the Framers and the People thought about this issue and this language a great deal and that a common specific meaning was widely held. Decisions taken in regard to congressional incompatibility are taken by a single house acting alone, absent presentment, absent bicameralism, and (in most cases) absent meaningful or timely judicial review. Such legislative determinations do not require supermajorities, just simple majorities: a majority of those voting, a quorum present. If the Framers had chosen ambiguous language that would have let the majority oppress and exclude the minority. In such circumstances, it stands to reason that the anti-federalists would have objected. And I might add, rightly so. But where is there a record of any such objection or anything like it?

The second reason is more cheeky. Michael throws pure textualism overboard because

To be sure, Tillman's textual argument is a good one. He uses a technique that Akhil Amar has called “intra-textualism” to glean the meaning of a term—“Office”--from how it and other terms are used in other parts of the document. If we had only the text of the Constitution, I think I would be persuaded by his reading. But the Constitution is not the perfect word of God.

What is good for the (constitutional) goose is good for the (constitutional) gander. If we cannot make use of intratextual meaning because the Constitution is not the word of “God,” if we cannot discover the meaning of the Incompatibility Clause’s Office under the United States language by investigating how the same (or similar) text was used elsewhere in the Constitution, then there is no reasonable warrant to look to the purposes of other clauses either. If usage was not consistent and coherent across the Constitution, then we lack any basis to assume strong aspirational or normative consistency across provisions either. So this strategy will not do.

(II) Stucturalism In The Service Of Other Constitutional Text. Here, Michael’s argument may be ... OK, the Incompatibility Clause does not forbid joint dual Member/VP office-holding, but such dual office-holding undermines the purpose of other constitutional provisions. Consider this hypothetical. A contested popular general election is held and no one wins an Electoral College majority. Under Amendment XII, the choice of the President falls to the House; the Vice President, the Senate. What if the two bodies were to pick the same person. (Remember Lloyd Bentsen – in 1988, he received electoral votes for both slots!) Could the same person hold both positions at the same time? The Incompatibility Clause does not preclude it. No other provision expressly forbids it. So you might say – well, yes, the same person could hold both the presidency and vice presidency. But, you might also reasonably argue that the entire or, at least, the primary purpose of the VP is to step into the shoes of the President in the event of the latter’s death, resignation, incapacity, conviction in impeachment proceedings, etc. So if the same person holds both positions, then the whole (or nearly the whole) purpose of the Constitution’s succession-related provisions has been frustrated and that is sufficient warrant to forbid what the text does not otherwise expressly forbid.

Michael cannot rely on this strategy here. Consider the Constitution’s many clauses relating to presentment and bicameralism. Was there widespread agreement in 1789 what these clause’s purposes were? Is there today? I do not think so. This popular, academic, and judicial literature here is quite contentious. (Some caused by me!) But even assuming this problem away, Ryan’s holding one seat in the House and the presiding chair in the Senate hardly undermines the whole or, even, nearly the whole purpose of these provisions. I think Michael has (at least elliptically) already acknowledged that: “[I]f [dual office-holding were permitted by a court] . . . I don’t think that would necessarily be so bad.”

So this strategy will not do either.

(III) Structuralism In The Service Of Constitutional Aspirations Or (Founding-era or Modern) Norms. Unlike strategies (I) and (II) above, this strategy is not driven by any express text. It relies on unstated assumptions or aspirations connected to the Framers’ worldview, the ideal of written constitutionalism, or our system’s federal design, etc. My own view is that this strategy is inconsistent with the rule of law, but I am (unfortunately) in the minority on this.

I will further state that this strategy – more than any other strategy – more than textualism – fairly applied – should lead the interpreter to permit dual member-VP office-holding.

Why? For the very sensible reasons explained by the Supreme Court of the United States in Powell v. McCormack (1969). In Powell, the Court held that the House’s refusal to seat Congressman-elect Powell, his exclusion based on a finding of corruption, was unconstitutional. In other words, the House can only exclude a member based on qualifications expressly stated in the Constitution: e.g., age, residency, and citizenship. Allegations of corruption, even if proven, will not do. The Court’s holding was rooted in two deep structural concerns. First, ours is a written constitution. A commitment to written constitutionalism requires the Courts, Congress, and other political actors (and, as an aspirational matter, maybe even legal academics speaking in the name of the Constitution?) to respect the Constitution’s textual limits. Congress is not free to subtract from extant express limitations, nor is it free to fashion new ones beyond the express text.

More importantly, restrictions on office-holding impinge on the freedom of the People to choose their governors: a theme which runs continuously from 1776 to 1787, and then to 1861-1865, and into the present of today and, hopefully, into our tomorrows. The People’s freedom to choose their own governors should not be limited by abstract policy-making concerns, common law decision-making, viz. structuralism.

Structuralism may have a role in other areas of constitutional law, but not here, not in regard to dual office-holding. At least, it ought not to; too much is put at risk by it. I suppose that makes me a bit of a moralist. I have tried not to be. And, as I said at the outset, I do not support text-free structuralism as a legitimate modality of interpretation (even where, as here, it supports the thrust of my position).

Professor Dorf and I agree that a further discussion of Wisconsin law as it relates to dual office-holding is too tangential for this blog. If you are still interested in the Wisconsin law aspect . . . see Michael Stern’s Point of Order blog (August 14, 2012), and CONLAWPROF (August 12 – August 17, 2012). This has been a fun party. Two blog posts are “far too short a time to spend among you – [but] this is the END. I am going. I am leaving NOW. Good-Bye!”

Seth