• Video

Evidence for the Original Public Meaning of “Officer”

Who was considered an “Officer of the United States” when the Constitution was ratified? Professor Jennifer Mascott shares the results of her study of original documents that use the term “officer.” In the early years of Congress, any official who performed ongoing government duties was considered to be an officer and, thus, subject to the Appointments Clause of the Constitution. https://youtube.com/watch?v=ntuYh2KQGGs


I did an extensive study looking at thousands of uses of the word “officer”, and even uses of the phrase “officers of the United States”, and the time leading up to the ratification or the approval of the Constitution. Those uses tend to suggest that officer, at the time, really meant any official who was carrying out an ongoing statutory duty, or an ongoing governmental duty. Even if it was something like recordkeeping. That at the time you were understood to be an Officer and would have, if that's the case, been subject to Appointments Clause requirements. The early practice tended to confirm this understanding. It's always interesting to know what weight to give to early practice because by early practice, we mean the first members of Congress, how did they carry out these constitutional commands and like us, they were people. They were often people with political agendas, so it's not 100% certain that the early members of Congress necessarily always accurately or completely carried out the precisely right meaning of the Constitution. At the same time, a lot of times people who do practice the interpretative method of Originalism, who try to figure out what the Constitution meant early on, will look at early practice at least as relevant evidence. So if we look at the early practice of the Appointments Clause, back then even officials as low level as clerks who were carrying out records, records like how money was being spent or account ledgers or writing down a record of which ship had authority to unload customs goods, those individuals were treated as constitutional Officers. There were some exceptions. There were some very low level customs officials who weighed customs goods or measured customs goods, who initially were not treated as constitutional officers. But within the first 10 years, Congress seemed to correct that practice and actually even made those individuals be subject to appointment by the Treasury Secretary. Even people who were just measuring how much liquid is in this package so that we can figure out the right customs charge to put on it, even those people were treated as Officers by the time we got to 1800.

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