Tillman, Seth Barrett (2021) Offices and Officers of the Constitution, Part 2: The Four Approaches. Law Journal Library (61). pp. 321-430.
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Abstract
This Article is the second installment of a planned ten-part series that
provides the first comprehensive examination of the offices and officers of
the Constitution. The first installment introduced the series. In this second
installment, we will identify four approaches to understand the Constitution's
divergent "office"- and "officer"-language.
First, under Approach #1, the Intermediate View, the Constitution's
references to "offices" and "officers" extend exclusively to positions in the
Judicial Branch and in the Executive Branch-whether appointed or elected.
But the Constitution's references to "offices" and "officers" do not extend to
positions in the Legislative Branch-whether appointed or elected.
Second, under Approach #2, the Maximalist View, the Constitution's
divergent "office"- and "officer"-language is used synonymously. And,
under this approach, these phrases refer to positions in all three branches,
whether appointed or elected.
Third, under Approach #3, the Minimalist View, the Constitution's
divergent "office"- and "officer"-language has different meanings. The
phrase "Officers of the United States" extends exclusively to appointed
positions in the Executive and Judicial Branches. And the phrase "Office ..
under the United States" extends exclusively to appointed positions in all
three branches. (The ellipses refer to different words the Framers placed after
office but before under: "profit," "trust," and/or "honor"). For more than a
decade, Tillman has advanced Approach #3. Blackman was first piqued by
Tillman's position shortly after he became a law professor, and he was
thereafter persuaded.
Item Type: | Article |
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Keywords: | Constitution; Officers; Maximalist View; |
Academic Unit: | Faculty of Social Sciences > Law |
Item ID: | 18550 |
Depositing User: | Seth Tillman |
Date Deposited: | 17 May 2024 14:26 |
Journal or Publication Title: | Law Journal Library |
Publisher: | HeinOnline |
Refereed: | Yes |
Related URLs: | |
URI: | https://mu.eprints-hosting.org/id/eprint/18550 |
Use Licence: | This item is available under a Creative Commons Attribution Non Commercial Share Alike Licence (CC BY-NC-SA). Details of this licence are available here |
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