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The Constitution’s officers

RGNStPaulsIf you read the Constitution carefully, you’ll see that the document frequently uses the terms “officers” and “offices.” But different words and phrases limit those two words in different parts of the Constitution. There are “officers” of the House of Representatives and the Senate. There are “civil officers,“Officers of the United States,””officers under the United States,” and officers “under the Authority of the United States.”

Some have suggested that the terms “office” and “officer” have the same meanings throughout the document, but that view makes no sense. For one thing, we always presume when reading a legal document—in the absence of evidence to the contrary—that variations in words communicate variations in meaning.  That suggests that these different phrases have different meanings.

Proceeding on the very reasonable theory that the Founders knew what they were doing when they wrote the document, constitutional scholar Seth Barrett Tillman has spent considerable effort reconstructing the meanings of different office/officer phrases. In addition to close reading of the text, he relies on a great deal of contemporaneous evidence. Here’s what he has learned:

* The bare term “officer” includes congressional, executive, and judicial officers, including the President, Vice President, Speaker of the House, etc. A “civil officer” is, as you might suspect, one who does not serve in the military.

* The other categories are narrower.

* “Officers of the United States” are appointed executive and judicial officers. Thus, the following are NOT “officers of”: The President, Vice President, and legislative officers like the Speaker and the Clerk of the House . One way we know this is that the President commissions “Officers of the United States,” but from the very beginning, the President has never been expected to commission himself, the Vice President, or legislative officers. Those individuals are all “officers,” but they are not  “officers of the United States.”

* The phrase “Officers under the United States” is narrower than “officers” but broader than “officers of.”  It includes “officers of,” plus appointed legislative officers, such as the secretary of the Senate. The phrase does not include those who hold elected positions.  There are several bits of Founding-Era evidence backing up this definition, including a list by Alexander Hamilton of executive and legislative “officers under.”

* “Officers of trust or profit under the United States” encompasses the same group as “officers under.”

* The phrase “Officers under the Authority of the United States” encompasses “officers under” plus people outside of the regular federal government establishment, but under still under authority — such as the federalized militia, holders of letters of marque and reprisal, and officers of federal trusts/corporations.

(For these distinctions, see Part III of this article.)

The Constitution also refers to offices of trust, honor, and profit. In the English system, an office of trust was one with real duties; an office of profit was mostly a sinecure. Professor Tillman believes, though, that the Framers may have inserted the term “honor, trust or profit” to ensure that officers did not become free of certain rules merely because they elected to serve without compensation.

Rob Natelson