Tillman on the 1792 Madison-to-Pendleton Letter: A Time for Reconsideration, Reflection, and Response? @SethBTillman

Seth Barrett Tillman, National University of Ireland, Maynooth, Faculty of Law, has published The 1792 Madison-to-Pendleton Letter: A Time for Reconsideration, Reflection, and Response? Here is the abstract.

In a 1995 Stanford Law Review article, Professors Akhil Reed and Vikram David Amar argued that the U.S. Constitution’s Succession Clause and its “officer”-language does not permit legislative officer succession. They concluded that the nation’s first succession act—passed by the Second Congress—which put the Senate’s and House’s presiding officers in the line of presidential succession—was unconstitutional. The modern presidential succession statute also puts legislative officers in the line of succession, and so the Amars concluded that it too was unconstitutional. In reaching their conclusion, they opined on the Succession Clause’s history, text, purpose, etc. The largest part of their argument was of a more intuitive variety: i.e., argument based on so-called “constitutional structural.” The Amars supported their intuition, in substantial part, by claiming James Madison shared their intuition. Or, to put it more precisely, they renewed an argument which, according to the Amars, was first put forward by James Madison in a letter to Edmund Pendleton (hereinafter the “Madison-to-Pendleton Letter”), and then they claimed Madison as high authority for the position they put forward. My object in this short paper is limited: it is to show why the Amars were wrong to rely on James Madison. The argument they put forward is their intuition, and not Madison’s. The Amars’ argument may be right on the merits (i.e., legislative officer is unconstitutional) and it may be wrong (i.e., the first succession act and its modern successor are both constitutional)—but the Amars’ claiming the mantle of Madison in support of their position is and always was largely historical error. The intellectual stakes here are not only reasonably high, but also peculiarly timely. The meaning of the Constitution’s Succession Clause and its “officer”-language is always two heartbeats away from contemporary relevance. That issue is always of at least some concern, even absent hype and the more idiosyncratic concerns of cloistered academics. Today, the presidential succession issue is relevant not merely because we are two heartbeats away, but also because we are one impeachment and one heartbeat away from applying the 1947 Presidential Succession Act—which puts the two presiding legislative officers, i.e., the Speaker of the House and the Senate President Pro Tempore (“SPPT”), in the line of succession. Finally, the Amars’ article and the Madison-to-Pendleton Letter are the key (modern) article and the key (premodern) historical evidence discussed in the academic debate over the Constitution’s “office”-language. That debate no longer resides exclusively in the halls of the academy—it has moved into the federal courts which are now litigating civil claims brought against the President under the Foreign Emoluments Clause. That latter clause applies to “Person[s] holding any Office of Profit or Trust under [the United States].” How we resolve or should resolve the issue of whether the President holds an office of profit or trust under the United States will depend, in part, on the rightness (or wrongness) of the Amars’ analysis, the meaning of the Succession Clause and its “officer”-language, and the meaning of the Madison-to-Pendleton Letter. Finally, I add that over ten years ago, I hypothesized that: “There is some reason to believe that [in the Madison-to-Pendleton Letter] all Madison was doing [was] reporting prior debate. Viz., each of ‘Madison’s’ four arguments in his letter to Pendleton had already been expressed on the floor of the House by speakers other than Madison in prior debate.” Today, I intend to make that claim good.

Download the article from SSRN at the link.