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  • John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).
  • This is a list of citations.

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  • This is a list of attributions.
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This Is a Test

A. Michael Froomkin & Steve Gordon, Politiké Finance V SFR, 12 Právník 1079 (1990).

The standard history of legal aid begins with the founding of the New York Legal Aid Society in 1876. It then chronicles male attorneys’ efforts to professionalize legal services during the Progressive Era, culminating in the 1919 publication of Reginald Heber Smith’s famous text, Justice for the Poor. By centering gender as a category of analysis, Felice Batlan cracks this narrative wide open. Women and Justice for the Poor demonstrates that the dominance of male attorneys and clients was contested from the start. By exposing the temporality and contingency of categories that Smith and many previous historians took for granted, Batlan deconstructs conceptual boundaries between law and social work, lawyers and reformers. The book, which recently won the Law and Society Association’s J. Willard Hurst Award for the best book in sociolegal history, is beautifully written, precisely researched, and strongly argued.

Batlan shows that organized legal services for the poor began earlier than we have recognized, in a female dominion of legal aid that prevailed from the end of the Civil War through 1910.   Although a rich historical literature has documented women’s social reform activities in this period, Batlan provocatively argues that many female-dominated organizations functioned as legal aid services. Women reformers in New York founded the Working Women’s Union in 1863. Similar organizations followed in Boston, Chicago, and much later in New Orleans. Elite women reformers acted as lay lawyers. They educated themselves about caselaw, used moral suasion and social pressure to advocate for clients, founded service institutions, and campaigned for reform in local government.

Cite as: Marissa Young, This Is a Test, JOTWELL (August 31, 2016) (reviewing A. Michael Froomkin & Steve Gordon, Politiké Finance V SFR, 12 Právník 1079 (1990)), https://zetasec4.jotwell.com/this-is-a-test/.

Constitutional Officers: A Very Close Reading

  • Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Brit. J. Am. Legal Studies 95 (2016), available at SSRN
  • Seth Barrett Tillman, Originalism & the Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014), available at SSRN

Everybody should read the Constitution. But some of us find more in its text than others. In a series of underappreciated pieces,1 Professor Seth Barrett Tillman may have found an intricate and startlingly coherent set of principles about government structure — as well as a reminder to take the Constitution’s words more seriously than we do.

Much of the Constitution (especially the original 1789 document) deals with structure. It creates government institutions, defines their powers, and regulates their membership. In the course of doing so, many of the Constitution’s provisions deal with individuals who hold government office – officers. Indeed, if you start ticking off references to “office” and “officers” as you read through the Constitution, you may notice two things: There are a lot of them, and many of them are phrased differently.

Consider some examples (emphasis added in each):

  • “Officer.” See, e.g., Article II, Section 1 (“[T]he Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.”)
  • “Officer of the United States.” See, e.g., Article II, Sections 2-3 (“The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law … and shall Commission all the Officers of the United States.”)
  • “Officer under the […] United States.” See, e.g., Article I, Section 6 (“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”)
  • “Public Trust under the United States.” See Article VI (“[N]o religious Test shall ever be required as a Qualification to any … public Trust under the United States.”).

As detailed below, there are many more. Most people, even most sophisticated scholars, have assumed that these textual variations are basically the same. Or, if they differ from clause to clause, people assume that the differences depend on the purpose of the provision, not the differences in wording. But what if that widespread assumption is wrong? One of Professor Tillman’s projects — I am tempted to call it a crusade — is to take these textual differences seriously, and show that the different office-related phrases have distinct meanings.

This isn’t just technicality for its own sake. The debate has important practical consequences. Consider the problem of presidential succession. Article II, Section 1, empowers Congress to decide “what Officer shall then act as President,” if both the President and VP are gone, and current law chooses the Speaker of the House. (Think of the Season Four finale of The West Wing.)

But the Speaker is not an “Officer of the United States.” The Speaker is elected by the people, and Article II, Sections 2 and 3, says that “Officers of the United States” are to be appointed and commissioned by the President. So if “Officer” and “Officer of the United States” are the same thing, the presidential succession statute is unconstitutional (an argument made by James Madison, and later by Professors Vikram and Akhil Amar). But if Professor Tillman is right, i.e., if “Officer” and “Officer of the United States” are different, the statute is fine. And if the dispute is unresolved, it is a recipe for constitutional crisis.

The evidence that Professor Tillman amasses is wide-ranging. Much of it is circumstantial or based on post-ratification practice. But some of it makes powerful points. For instance, so far as we can tell, no President has ever given himself or the Vice President a commission. That suggests that the President and Vice President are not “Officers of the United States,” and raises questions about whether other “Officer” formulations apply to the President.

Here are two more historical examples. First, President George Washington publicly received gifts from French officials (the key to the French Bastille and a portrait of Louis XVI) without asking Congress’s permission. This suggests that he was not subject to the Foreign Emoluments Clause, which applies to a “Person holding any Office of Profit or Trust under [the United States].” Second, in 1792, Treasury Secretary Alexander Hamilton was instructed to report to the Senate “every” person holding “office … under the United States” and their salaries. His ninety-page list included 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. This suggests that some definitions of office will turn on whether one is elected rather than which branch one is in.

Now, there may be alternative explanations for each of these points. Taken as a whole, however, they start to suggest that most of us have been too quick to assume that there is no logic to the Constitution’s varying terminology. Across his publications, Professor Tillman puts forth a systematic, intricate account of each of these terms, which makes sense of the historical examples and provides a consistent and coherent account of the text.

As I understand it, here is a synthesis of the Professor Tillman position:

Phrase Meaning Constitutional Provisions
Officer (simpliciter) Holds an office – includes those holding “office … under the United States” as well as those holding elected positions: The President, Vice President, and Speaker of the House and Senate President Pro Tem Succession Clause, Art. II,
sec. 1
Officer of the United States Appointed officers in the executive and judicial branches – subset of those holding “Office … under the United States” Appointments Clause, Art. II,
sec. 2
Commissions Clause, Art. II,
sec. 3
Impeachment Clause, Art. II,
sec. 4
Oaths
Clause, Art. VI
Office … under the United States All positions created, regularized, or defeasible by federal statute including (nonelected) legislative branch positions Incompatibility Clause, Art.
I, sec. 6
Rebellion Disqualification
Clause, Amdt. XIV, sec. 3
Religious
Test Clause, Art. VI
Offices of Honor/Trust/Profit under the United States Subsets of “Office … under the United States”
Honor: Honorary offices with no regular duties, salary, or other emoluments
Trust: Offices with regular duties that are not delegable, e.g., an Article III judge
Profit: Offices holding regular salary or other emoluments
Disqualification on Impeachment
Clause, Art I, sec. 3
Foreign Emoluments Clause,
Art. I, sec. 9
Elector Disqualification
Clause, Art. II, sec. 1
Public Trust under the United States Elected positions and constitutionally created offices – i.e., the President, Vice President, Members of Congress, and Members of an
Article V national convention
Religious Test Clause, Art. VI
Office under the Authority of the United States A superset of “Office … under the United States.” It also includes federally supervised offices, even if not federally created (such as mobilized militia officers) Domestic Emoluments Clause, Art. I, sec. 6

(Thanks to Margo Uhrman for her assistance in compiling this table.)

Next time you confront a separation of powers problem or read through parts of the Constitution, keep Professor Tillman’s chart in hand. Suddenly, it will be hard to assume that the Constitution’s textual variations are meaningless. Indeed, Professor Tillman’s theory makes sense of patterns that most of us never saw. It brings order out of chaos. That is not to say that his position has been conclusively proven. But at this point, I think he has singlehandedly shifted the burden of proof.

Since this is an entry in the Journal of Things We Like Lots, and since I am synthesizing much of Professor Tillman’s work here, I feel the need to venture a final word on his research style. When you read an individual Tillman piece, you will notice exceedingly technical arguments combined with an almost urgent voice. You cannot help but think the author is brilliant, and you cannot help but wonder if the author is rather eccentric. As you read more of the pieces together, you will realize that he has a constitutional project, that he pursues it with great skill and knowledge, and that if he didn’t do it, nobody would.

We need more scholars like Seth Barrett Tillman.

  1. These two recent works advance a longer sequence of research, including: Seth Barrett Tillman, Why Professor Lessig’s “Dependence Corruption” Is Not a Founding-Era Concept, 13 Election L.J. 336 (2014), available at SSRN; Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285 (2013); Seth Barrett Tillman, Six Puzzles for Professor Akhil Amar (2013), available at SSRN; Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399 (2012); Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107 (2009), available at SSRN; and Seth Barrett Tillman, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. of Pa. L. Rev. Pennumbra 134 (2008) (debate with Steven G. Calabresi). []
Cite as: William Baude, Constitutional Officers: A Very Close Reading, JOTWELL (July 28, 2016) (reviewing Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Brit. J. Am. Legal Studies 95 (2016); Seth Barrett Tillman, Originalism & the Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014)), http://conlaw.jotwell.com/constitutional-officers-a-very-close-reading/.

Test Classic

Herbert Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Probs. 216 (1948).

Perhaps Herbert Wechsler needs no introduction, no expression of appreciation. He did, after all, leave an indelible mark on three bodies of law: criminal law, constitutional law, and the law of federal jurisdiction. He served as the third director of the American Law Institute, shepherding an important collection of Restatements through the process of drafting and approval. Also in his director’s role, he played a central role in the ALI Study of the Division of Jurisdiction Between State and Federal Courts (1969), which occupies a place on my federal courts bookshelf alongside the 1953 casebook Wechsler wrote with Henry Hart.

But despite his many contributions to legal scholarship, Wechsler’s reputation these days might appear to depend on two articles: 1959’s Toward Neutral Principles of Constitutional Law and 1953’s The Political Safeguards of Federalism. The first has suffered from its criticism of the Supreme Court’s decision in Brown v. Board of Education, which comes as close as one can these days to academic apostasy. The second contributed an enduring idea to the canon of constitutional law, but one that may have fallen temporarily from grace with the rise of the judicially enforced federalism of the Rehnquist Court.

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I want to focus instead on Wechsler’s 1948 article, Federal Jurisdiction and the Revision of the Judicial Code. I find myself returning to the article for a number of reasons. To begin with, the choices of the 1948 revisers and codifiers remain very much a part of our jurisdictional law over sixty years on, as do Wechsler’s criticisms of those choices. In addition, the article has the remarkable Wechslerian ability to identify doctrinal and statutory rough patches and foresee new departures in jurisdictional law. Indeed, a surprising number of Wechsler’s suggestions have been written into the law of federal jurisdiction, either by Congress or the Supreme Court, thus underscoring the power of scholarship as a tool of effective law reform. Wechsler managed to accomplish all this in thirty pages, deploying a gift for concision we should all envy.

Finally, the article offers a glimpse backward to the middle years of the twentieth century, when Congress was placing the government on a more responsible footing in relation to the citizens hurt by the conduct of government business. Congress had just adopted the Administrative Procedure Act and the Federal Tort Claims Act, both aimed at facilitating litigation to remedy illegal federal government action. Rather than something that courts and commentators cherished or sought to defend, sovereign immunity was rightly regarded as a relic of a less enlightened age.

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Wechsler began with a simple statement of principle: in general, federal courts should focus on the litigation of federal questions and should steer clear of matters of state law. In this approach, Wechsler was part of a broad group of scholars and jurists (including Felix Frankfurter and Henry Friendly) who thought of the business of the federal courts from a post-Erie perspective that cast doubt on the wisdom of expending federal judicial resources to resolve state law matters in diversity. Not only did the cases burden the federal courts, but they presented in its most “aggravated form” the worrisome possibility that federal courts would misapply state law. Curiously, recent legislation (including the Class Action Fairness Act and the Multi-Party Multi-Forum Trial Jurisdiction Act) seems to have lost touch with that simple principle, expanding the scope of minimal diversity jurisdiction without attending to the accompanying problems of choice of law.

In proposing to simplify jurisdiction over claims against the federal government, Wechsler began with the view that sovereign immunity should be limited in favor of a principle of government accountability. A similar principle emerged in a 1976 amendment to the APA, although immunity remains a stumbling block far too often. Second, he advocated the elimination of any amount-in-controversy requirement, not only for claims against the government but for all claims based upon federal law. Eventually, Congress came to agree, although not for thirty years. Third, he offered a series of useful suggestions to address venue issues in mandamus proceedings, something Congress fixed in 1962. Fourth, he called for recognition of a general principle that challenges to the legality of federal official action belong in federal court, not only to be implemented through the government’s right to remove (which first appeared in the 1948 codification) but also as a plaintiff’s right to lodge the case in federal court in the first instance. In thus anticipating the Bivens action, albeit on a much wider scale than it occupies today, Wechsler suggested that federal common law should provide the measure of official liability. Finally, Wechsler criticized the derivative jurisdiction removal doctrine, which holds that removal jurisdiction attaches only where the state court could have asserted jurisdiction had the action remained there. Congress eliminated this rule from general removal law, although the federal government continues to invoke it, unfortunately with some success, for its own special benefit.

Other comments in the article, large and small, anticipate and challenge jurisdictional developments. For example, Wechsler dealt quite pithily with the problems of federal-state relations presented by the Ex parte Young doctrine. He noted the rise of equitable abstention doctrines, and called for a more general approach: federal courts should stay their hands when states offer a plain, speedy, and adequate remedy. Wechsler recognized that by casting the burden on the states to demonstrate the existence of an adequate remedy, federal law would go far to ensure its ready availability. Yet he would have created an exception for actions brought under the civil rights statutes, thus recognizing that state-federal tension in the coming years was likely to center on such equality claims, rather than the substantive due process claims brought to federal court in Ex parte Young itself. Apart from abstention, Wechsler sketched a clever solution to the problem of supplemental jurisdiction, suggesting presciently that jurisdiction should attach to transactionally-related pendent state claims subject to discretion in the district court to send state law matters back to state court. He even called for the tolling of the limitations period while the later-dismissed state claims were pending in federal court.

As for the problem of choice of law, Wechsler endorsed the Erie doctrine but called for wide recognition of the power of federal courts to fill gaps and enforce federal rights through the development of federal common law. Wechsler would have dealt with the problem by amending the Rules of Decision Act to provide that, for the enforcement of all federal rights and duties, “the federal courts are authorized to grant all remedies afforded by the principles of law, unless an Act of Congress otherwise requires or provides.” Under such a statute, the power of the federal courts to give effect to federal rights, either through rights of actions or remedies, would have been clearly acknowledged, and much of today’s sturm and drang over implied rights of action might have been avoided. Wechsler also anticipated Friendly’s famous paper, In Praise of Erie—And of the New Federal Common Law and the future course of decisional law by arguing that all such federal judge-made law should be regarded as binding in state court.

Wechsler may have overreached on one question. Offering a broad view of Congress’s power to expand the jurisdiction of the federal courts, Wechsler argued that a grant of jurisdiction within a field of congressional competence might operate as a legitimate form of federal regulation, even where state law was to apply. While the Court has been unwilling to embrace this conception of protective jurisdiction, its approach to federal ingredient jurisdiction allows Congress to achieve similar goals with relatively modest federal substantive law provisions (as it has done under the Federal Tort Claims Act and the Foreign Sovereign Immunities Act). Protective jurisdiction of Wechslerian breadth thus remains but a glimmer in the scholar’s eye.

Although 63 years have passed, Wechsler’s article still rings true and continues to offer a reform program of surprising relevance today. Let’s think for a moment about what Wechsler brought to this lasting piece of scholarship: a sure-handed command of existing law; an understanding of how the legislative and judicial processes work; an imaginative conception of the potential range of doctrinal growth; and a keen eye for the changes that would require legislative involvement. Apart from these gifts, Wechsler believed in the importance of law reform as a positive program for change led by legal scholars. In a world increasingly devoted to the work of scholars who care little for the content of law, Wechsler’s commitment to a scholarship of law reform may, ironically, be the feature of the article least likely to survive.

Cite as: A. Michael Froomkin, Test Classic, JOTWELL (March 29, 2014) (reviewing Herbert Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Probs. 216 (1948)), https://zetasec4.jotwell.com/test-classic-2/.