The Volokh Conspiracy

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Part I—A Response to Professor Jed Shugerman on Slate in 2017, and his most recent 2024 Tweet Thread(s), About The 1793 Hamilton Document!

Professor Shugerman's argument that the 1793 Hamilton Document, that is, a list of "every person holding any civil office or employment under the United States, (except the judges)," was intended to ensure compliance with the Constitution's Sinecure Clause lacks support.

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[This post is co-authored with Professor Seth Barrett Tillman.] 

Long-time readers may remember the Hamilton Imbroglio of 2017. The New York Times covered it in Adam Liptak's September 2017 piece titled "'Lonely Scholar With Unusual Ideas' Defends Trump, Igniting Legal Storm." That title sounds somewhat similar to Charlie Savage's February 2024 New York Times article titled, "A Legal Outsider, an Offbeat Theory and the Fate of the 2024 Election." Some things never change. If you want a summary of the prior 2017 saga, we provided details in Part IV of our ten-part series (pp. 484-520). 

Around the same time that debates arose about which of two competing documents Alexander Hamilton, in fact, signed in 1793, Professor Jed Shugerman and Professor Gautham Rao also wrote a Slate article explaining why Hamilton would not have listed President Washington as a person holding "any civil office or employment under the United States." Their argument was premised on the Constitution's Sinecure or Ineligibility Clause. The clause provides: "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 [i]ncreased during such time." U.S. Const. Art. I, Sect. 6, Cl. 2. In short, Shugerman and Rao explained that since there was no concern that the presidency could trigger a violation of the Sinecure Clause, Hamilton did not list the presidency and the president's compensation. 

We reviewed that argument at the time, but we chose not to respond. Why? In September 2017, Shugerman, Rao, and their three co-authors (collectively the "Legal Historians") retracted their claims about which purported Hamilton-signed document was authentic. We had thought that had ended the matter. This is not to say that we did not have other complaints and grievances against them. We did. We had hoped that they'd review their writings for completeness and accuracy and make coordinate changes and retractions. We did not wish to engage in overreach by embarrassing them with each and every error they had made. And we rightly feared that our making other demands, after they retracted on the issue of authenticity, would put us in a bad light. Their argument in Slate was just one such argument—an argument that they should have retracted in 2017. 

Another was their claim, in an amicus brief, that presidential electors hold an office of trust under the United States, and for that reason, electors are subject to the Foreign Emoluments Clause. The Legal Historians made this claim in their brief at n.59 which was filed in the Southern District of New York, but they quietly dropped this claim in subsequent briefs. See Seth Barrett Tillman, The Foreign Emoluments Clause–Where the Bodies are Buried: "Idiosyncratic" Legal Positions, 59 S. Tex. L. Rev. 237, 248 (2017) ("How could five academics tell a federal court, without citing any supporting authority or noting any contrary authority, that presidential electors hold an 'office "of trust" under the United States' and that electors fall under the scope of the Foreign Emoluments Clause?").

But the most basic reason we did not respond to their Sinecure Clause argument was that we (Blackman and Tillman) are not their unpaid editors whose task it is to perfect their publications. Again, back in 2017, Shugerman, Rao, and three other academics mistakenly identified a document from the 1830s as one from 1793, and then said, we (Blackman and Tillman) failed to put this purported Alexander-Hamilton-signed document before the courts. The situation was surreal. Who ever dreamed that Shugerman or any of his colleagues would willingly return to this minefield of error and hyperbole? 

Now, roughly seven years later, Shugerman has resuscitated his (and Professor Rao's) 2017 Slate argument based on the Sinecure Clause.  We will respond to Shugerman here. (Rao has not resuscitated his prior position in Slate, or said anything else about the Hamilton document of late, so we will only mention Rao in passing in order to lay the facts before the reader.)

Shugerman's Arguments in 2017

Here is the argument that Shugerman and Rao advanced in their 2017 Slate article:

Ultimately, the central piece of documentary evidence for [Blackman and Tillman's] emoluments argument is a manuscript version of a 1792 [sic: it was from 1793] document by Secretary of the Treasury Alexander Hamilton. That document omitted President George Washington from a list of "Persons Holding Civil Offices or Employments Under the United States." Yet the same document, when it was actually printed in official records of the early U.S. government, listed the president and vice president under the heading of "persons holding civil offices or employments under the United States." In every subsequent report of the Treasury Department listing the employees and offices "under the United States"—from Treasury Secretary Hamilton himself and his successors—the president is included with the rest of the federal officers on the "civil list." That Tillman and Blackman bury this fact while emphasizing the original Hamilton version is remarkably convenient for their argument.

There is a more likely explanation for why Hamilton initially omitted the president or vice president. The word "civil" is used only twice in the Constitution, and one of the passages is specifically about guarding against another form of emoluments-related corruption. That passage ensures that members of Congress can't be appointed to any new "civil office" they created or accept such an office's bigger salary if they voted to increase it. The Senate had asked Hamilton to produce a list of "civil officers" and their salaries in 1792 at a crucial time for filling appointments, which indicates they had this passage in mind. It seems likely that Hamilton initially focused his list for his immediate practical task, for which the president and vice president were irrelevant. But when it was time to print the official version, his Treasury Department added the president and vice president because they too were "civil officers under the United States." (emphases added)

Before getting to the merits of Shugerman and Rao's Sinecure Clause-based argument, we will address some preliminary and significant problems with these two paragraphs. First and foremost, Shugerman and Rao stated: "In every subsequent report of the Treasury Department listing the employees and offices 'under the United States'—from Treasury Secretary Hamilton himself and his successors—the president is included with the rest of the federal officers on the 'civil list.'" Shugerman and Rao supplied no link to any original or to any reproduction; they cite no document in any collection; they put forward no source at all. Not even a date. It has been seven years. Let them put forward one such document from Secretary Hamilton or the Treasury during Hamilton's tenure. If they cannot do so, then we again are forced to ask them to retract, both on social media and under their byline on Slate. We do not think they can produce what they have affirmed exists. And if that is the situation, for heaven's sake, what possessed Shugerman to return to this issue and to his 2017 Slate publication? 

Second, the document printed in American State Papers was not the "same document" that Hamilton signed. It was a different document, which had been altered by unnamed Senate functionaries many years after Hamilton died. It was not Hamilton's Treasury Department that added the President's and Vice President's compensation. 

Third, we did not "bury" any fact. Tillman's pre-2017 scholarship had discussed the various Hamilton reports.

Shugerman and the other Legal Historians have retracted their claims about which of the two purported Hamilton-signed documents was authentic. They did the correct thing, and we respect what they did. But no retraction or correction has been posted regarding the problems with the above two paragraphs. Again, we only bring these things up, now and in public, because Shugerman has forced us to do so. 

Shugerman's 2024 Tweets

For ease of reading, we have collapsed the start of Shugerman's multi-part 2024 tweet thread into a single block quote:

 

14th A[mendment] Disqualification fact-checking: "Officers of the U.S." includes presidents. I'm sorry to repeat this, but @JoshMBlackman keeps citing the infamous Hamilton letter. During Emoluments litigation, @gauthamrao & I had a better explanation in 2017: At an Originalism conference in San Diego, @JoshMBlackman debated @WilliamBaude & Mike Paulsen, followed by Q and A, over roughly 3 hours. The Tillman/Blackman "Officer of the US" argument again again got demolished. Yet Josh celebrated Gorsuch & Jackson taking it seriously. I didn't want to take up too much time with my questions, so I focused on an obvious problem with Josh's presentation and their misreading of the appointments clause. As Josh later kept going back to the 1792 [sic: it was from 1793] Hamilton letter, I re-stated our explanation privately: We were wrong that Hamilton signed a second letter including the president & VP, and apologized for the error at the time. But in @slate 2017, we offered a better explanation for the letter they cite that did not include Pres & VP. (emphases added)

 

We will let others decide if Baude and Paulsen "demolished" Blackman. (The recording should be available soon enough if it is not already available.) As Blackman recalls, the most hostile questions came from (as one could have expected) Shugerman and John Mikhail (who is the subject of our two–part response). There were favorable comments to our (Blackman and Tillman's) position from leading originalist scholars, and a healthy back-and-forth between Blackman, on one side, and Baude and Paulsen, on the other side. For example, Professor Larry Solum asked Baude, "How do you resist [Blackman and Tillman's] technical reading that seems to be deeply rooted in the original law of constitutional interpretation?" Solum added, the "Blackman-Tillman approach is most consistent with original law." We don't suspect we persuaded everyone in the room, but there was no demolition. 

Back to Shugerman's thread:

I haven't seen Josh or @SethBTillman address our 2017 explanation. If they have, my apologies. I raised this with Josh privately. He checked his materials & later asked: "Why didn't the Senate ask for judges, too? Same ineligibility problem." My reply: "Judges were clear…" There were only 21 judgeships total, created in a single early statute, the Judiciary Act of 1789, and a few days later (Sept 1789), a short statute set their salaries. Note that there were only 6 Justices & 15 district judges. I don't think the 1st two Congresses added more judgeships or raised their salaries. Even if they did, those increases would have been easy to track. Meanwhile, Congress had created new departments and waves of new offices in a more piecemeal, incremental way. Hamilton was Treasurer, of course. That's a good explanation for why he was asked to make the list: He had at hand the details of existing salaries that Treasury was paying. This accounts for my "Presidents and VPs" weren't included: The Senate didn't confirm those offices. 

Here, we put forward several responses to the Shugerman and Rao argument based on the Sinecure Clause.

Response #1: We dispute Shugerman's understanding of how the Sinecure Clause works. Either we are, or he is, in error. 

The Sinecure Clause was designed to ensure that members of Congress cannot be appointed to positions that were created during their elected tenure, or be appointed to positions for which the compensation was increased during the members' tenure. That ineligibility continues even if the member resigns from Congress. For a representative, elected to a two-year term, the ineligibility would last for two years, and for a senator, elected to a six-year term, the ineligibility would last for six years. 

First, Shugerman acknowledges that the Judiciary Act of 1789 created new judgeships, but then states that no more judgeships were created by the First and Second Congresses. (In fact, new judgeships were promptly created after the 1789 Judiciary Act as new States were admitted in 1790 & 1791. 1 Stat. 128, 1 Stat. 197.)

These are the basic facts: The First Congress assembled on March 4, 1789 and adjourned on March 3, 1791. The Second Congress assembled on March 4, 1791 and adjourned on March 2, 1793. (Albeit, the constitutional term may have reached March 3, 1793.) The Senate submitted its request to Hamilton on May 7, 1792: during the Second Congress. And Hamilton's responsive document was for the financial year ending October 1, 1792 (October 1, 1791 to October 1, 1792). In other words, the entire financial year associated with the Hamilton document took place during the Second Congress, but that financial year did not extend to the complete two-year term of the Second Congress. Part of the term of the two-year Second Congress followed the financial year reported by Hamilton, and part of the two-year term of the Second Congress preceded the financial year reported by Hamilton. Hamilton submitted his financial report on February 26, 1793—again, during the Second Congress. 

The problem for Shugerman and Rao is that the Hamilton document only reports positions and their compensation—but the Hamilton document does not report whether an office was authorized by a statute of the First or Second Congress. Thus, any senator elected to the Second Congress would have no way of knowing if he was excluded from holding any particular position—his exclusion would depend on whether the position was created during the First or Second Congress. If a position had been created during the First Congress and a senator was elected to the Second Congress, then the Sinecure Clause imposed no bar on that senator in regard to that position. Alternatively, if a position had been created during the Second Congress and a senator was elected to either the First or Second Congress, then the Sinecure Clause imposed a bar on both sets of senators. We think, this fact, even standing by itself, largely undermines the Shugerman-Rao position. 

Secondly, the Senate instructed Hamilton to produce a year-long financial report. But it also expressly directed that Hamilton report quarterly results. If the purpose of this financial statement was to guide practice under the Sinecure Clause, then there was no reason for the Senate to have demanded a time-consuming quarterly breakdown of the compensation for each position. We think, this fact, standing by itself, also undermines the Shugerman-Rao position. 

We will be blunt with the reader. Either Shugerman is correct about the purpose of the Hamilton document or we (Blackman and Tillman) are. We cannot both be correct. 

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A second part will follow.