Many of the Supreme Court’s decisions as to state sovereign immunity are problematic, but there is an originalist basis for some of those decisions.
One of Justice Scalia’s primary influences on constitutional law and theory has been the growth of originalist textualism – the view that takes close textual readings of the Constitution seriously and draws important consequences for constitutional law from the text rather than someone’s view of what is normatively desirable. One of the people who has a particular keen interest in such textual differences and their consequences is Seth Barrett Tillman, who has over the last several years sought to closely examine seemingly minor textual variations and to draw significant consequences from them.
In Jotwell, the Journal of Things We Like, Will Baude summarizes and appreciates Seth’s scholarship in this area. Will explains how Seth has looked at various terms in the Constitution — “Officer,” “Officers of the United States,” “Officer under the […] United States,” “Public Trust under the United States,” “Offices of Honor/Trust/Profit under the United States,” and “Office under the Authority of the United States.” Could each of these terms really have distinct meanings? For many years, even originalist textualists have often assumed the answer is no.
But Seth argues there are important differences between these terms. Will discusses some of the interpretations and evidence that Seth has used to justify these distinctions. And he has an extremely useful chart with all six categories and the meanings offered by Seth.
What are some of the distinctions? Start with the distinction between “Officer” and “Officer of the United States.” The latter is from the Appointments Clause, which is generally recognized as referring to officers in the executive and judicial branches. The former is used in the Succession Clause, which provides that when the President and Vice President cannot serve as President, the Congress may by law declare “what officer shall then act as President.” If “Officer” means the same as “Officer of the United States,” then legislative officers, such as the Speaker of the House, cannot be in the line of succession. The Amar Brothers have strongly argued for this position. But Seth claims to the contrary that “Officer” means something broader, including “Officer under the Authority of the United States,” which would allow legislative officer succession.
Another example that Will discusses involves “office under the United States.” Seth relies on the fact that when Treasury Secretary Alexander Hamilton was instructed in 1792 to report to the Senate “every” person holding “office … under the United States” and their salaries, he attached a list that include “every appointed officer, including those in the legislature, such as the Clerk of the House, but excluded elected officials such as the President, Vice President, and members of Congress.” Seth concludes that this category includes “all positions created, regularized, or defeasible by federal statute including (nonelected) legislative branch positions.”
As this last example suggests, it is not clear that Seth is right about all of these claims. But Seth has carefully examined the textual and other evidence, and has done more in this area than anyone else. His work is the place to start, and in many cases, unless you do the research yourself, it will be the place you end. Read Will’s appreciation and Seth’s work.