Tenth Amendment Center: Law Professors’ Letter on Executive Power: An Originalist Argument by Nonoriginalists
A number of law professors have signed an open letter to the President’s counsel asserting that the President is bound by a duty of good faith in carrying out executive functions.
Here is the basic claim (footnote omitted):
First, the best understanding of Article II of the Constitution is that presidential actions motivated by self-protection, self-dealing, or an intent to corrupt or suborn the legal system are unauthorized by and contrary to Article II of the Constitution. Second, and even if one does not accept the foregoing construction of Article II, Congress has enacted obstruction of justice statutes that prohibit any person from acting “corruptly” to interfere with federal criminal investigations. Whatever a President may have been able to do in the absence of such statutes, Congress’s judgment that obstruction of justice is prohibited binds the President.
I will have some comments on the substance (in Part 2, forthcoming) but to begin I want to highlight the methodology: This is an originalist letter. In the section discussing the Constitution, almost the entirety of the argument invokes the text as it was originally understood, the intentions of the framers (“Founders”), and the English law background of the Constitution. Here is the letter’s substantive argument in full (footnotes omitted, but they do not contain material additional arguments, only sources), with my notes after each paragraph:
While Article II empowers the President to execute the laws, it also constrains him in so doing. The “Take Care Clause” requires that the President “shall take Care that the Laws be faithfully executed” (emphasis added). Article II contains a mandatory Oath of Office whereby the President must swear to “faithfully execute the office of President.” Like the Take Care Clause, the Oath also conceives of the President’s role as a duty—to “preserve, protect, and defend the Constitution”—not a personal power.
(This paragraph is a pure textualist argument.)
When the Founders thus defined the Presidency as an office bound and restricted by overarching duties of care and faithfulness (fidelity) to the Constitution and laws of the United States, they were invoking the well-known concept of treating a public officer as a fiduciary. In the eighteenth century, as today, English and American law required fiduciaries to act always with due care, solely for the good of their beneficiaries, and to abstain from self-dealing, corruption, and other kinds of self-interested actions.
(This paragraph relies on the eighteenth century concept of a fiduciary and uses that concept as evidence of how the “Founders” [it’s unclear if this means the drafters/ratifiers or more broadly the founding generation] understood the words and structure of the Constitution. That’s conventional originalist argumentation. I don’t understand the reference to the meaning of fiduciary “[i]n the eighteenth century, as today” to detract from the originalism of the argument. Rather, it’s saying that the eighteenth-century meaning hasn’t changed, so it should be easy for us to understand. Justice Scalia commonly used this expression.)
The President’s duties of care and faithfulness are the fiduciary duties most explicitly required by the Constitution, a document that refers to many offices as “Offices of Trust,” invoking the legal concept of trusteeship (a fiduciary relationship). Mirroring the Constitution’s text, the Federalist Papers repeatedly use the language of care, faith, and trust to describe the offices and duties of all three branches of the federal government and the way their powers should be exercised on behalf of the American people. George Washington, in the opening lines of his first inaugural address, spoke of the presidency as a “trust” committed to him by the American people. The Founders’ carefully-chosen words, with their well-known meanings, reflect a conception of a chief magistrate who is duty bound to act with faithfulness to the law and the people, not to his own selfish interests. A similar view of the office underlies the conclusion of the Department of Justice’s Office of Legal Counsel that a president may not pardon himself.
(This paragraph adds further standard originalist sources — The Federalist, George Washington — plus the assertion that we can understand the Founders’ design through their “carefully-chosen words” and those words’ “well-known meanings.” The latter claim is simply public meaning originalism. The only nonoriginalist point in the discussion is the undeveloped and somewhat out-of-place reference to the OLC opinion, whose significance isn’t explained and which seems almost an afterthought.)
It is not strange that the Founders chose to create a chief executive who would be bound to act for public-spirited reasons, rather than pursuing self-interest, self-dealing, or self-protection. Monarchy and all of its attendant ills were rejected by the Founders. The President would not be a king by another name. By banning titles of nobility, and providing that the President would be elected to a term of years, not chosen on hereditary principles, and not ruling for life, the Constitution addressed the fear that a chief executive’s primary interest would be perpetuation of his dynastic successors and retainers rather than the good of the country. Many English kings had been foreign born, and still held lands and titles abroad, giving them personal interests that might differ from those of the citizenry. In response, the Constitution requires that the President be a citizen. The President was to be given a salary while in office, and prohibited from imposing taxes or otherwise raising funds on his own authority, and also positively barred from accepting bribes, gifts, or other emoluments of office from foreign governments or state governments. Typically monarchical kinds of financial self-dealing by the chief magistrate were therefore substantially checked. And importantly, the Constitution was conceived at a time when the English Bill of Rights constrained even the monarch from exercising the so-called “dispensing” power to dispense with or suspend Acts of Parliament. Our Constitution similarly limits the President, and certainly cannot be read to grant him a power the British monarch lacked.
(This paragraph is a typical originalist invocation of the Constitution’s historical and legal background, coupled with supporting references from elsewhere in the test, to develop the text’s original meaning.)
And that’s it. The next two paragraphs are conclusions with no new argumentation, and that’s the end of the constitutional discussion. (The letter then goes on to discuss the obstruction of justice statute). There is no discussion of historical practice, no discussion of precedent, no discussion of the evolving needs of modern society, and no discussion of best design of government apart from the claim that this is the design the Founders chose for reasons that are understandable given their experiences.
Finally, the conclusion:
The Office of the President is not a get out of jail free card for lawless behavior. Indeed, our country’s Founders made it clear in the Declaration of Independence that they did not believe that even a king had such powers; they specifically cited King George’s obstruction of justice as among the “injuries and usurpations” that justified independence. Our Founders would not have created—and did not create—a Constitution that would permit the President to use his powers to violate the laws for corrupt and self-interested reasons.
Again, here we find total reliance on the founders to establish an unqualified declaration of what the law is today.
In sum, this is exactly what a group of originalist scholars would be expected to say. Except that this is not a group of originalist scholars. Only a handful of signers are ones who would qualify as “originalist oriented” and none is an originalist theorist. The very first name (alphabetically) is Erwin Chemerinsky, who has been strongly critical of originalism (during the Gorsuch hearings and otherwise); other prominent originalist critics/signers include Eric Posner and Peter Shane. I’m not familiar with all of the signers, but they appear to be a group of prominent but conventional constitutional law scholars.
That’s significant because their willingness to make a purely originalist argument here substantially undercuts the three leading criticisms of originalism heard for example during the Gorsuch hearings:
(1) Originalism is a radical cultish ideology that is inconsistent with ordinary approaches to legal interpretation.
(2) Originalism is impossible because we can’t know for sure what the framers thought about anything or what words meant historically, and in any event only trained historians can fully understand the past.
(3) Originalism is irrelevant because we shouldn’t be bound by the framers’ design.
(Dean Chemerinsky made all three of these arguments, as I discussed — a bit harshly, I admit — here).
Yet in the academics’ letter we have (1) a group of mainstream constitutional law scholars asserting (2) that they know what the framers meant in drafting the relevant constitutional clauses and (3) that the eighteenth-century meaning is binding on us today. It’s enough to make me ask, with Will Baude: Is Originalism Our Law?
(In a second post, I’ll discuss why I didn’t sign the letter, even though I largely agree with its originalist analysis.)
Michael D. Ramsey
June 12, 2018 at 06:28AM
