[This post, which is co-authored with Professor Seth Barrett Tillman, continues from the first installment.]
Response #2: The 1793 Hamilton list was not limited to Senate-confirmed positions
Professor Shugerman speculates that the President and Vice President were not included on the list because the "Senate didn't confirm those [two] offices." The Sinecure Clause does not merely apply to those principal officers confirmed by the Senate. The text applies to those who hold "civil office under the Authority of the United States." This category would also include inferior officers, who are not Senate confirmed, as well as appointed positions in Congress, such as the Clerk of the House and the Secretary of the Senate. Indeed, the House and Senate would have better records than Hamilton about House and Senate officers who drew compensation from the legislature. Moreover, the 1793 Hamilton document includes many more than a few appointees who were not confirmed by the Senate. Such appointees included positions entirely outside the Executive Branch, e.g., appointees in the legislature, such as the Clerk of the House and Secretary of the Senate, and clerks of the federal courts. Shugerman's speculation is entirely disconnected from the text of the document he seeks to understand.
Response #3: Shugerman admits he has no "explicit confirmation" for his position
Shugerman (and Rao in 2017) fault us for failing to provide any documentary evidence that Hamilton excluded the President because he did not view the President as holding an "Office under the United States." To the contrary, there is documentary evidence for that precise point. The Senate issued an order directed to Hamilton to produce a list of "every" and "any" civil office or employment under the United States. The Senate's order was specific and used language found in the Constitution. We have every reason to believe that Hamilton complied with the Senate's instructions, and we have no reason to think he ignored those instructions.
Still, we can turn the same criticism around: Shugerman (and Rao in 2017) provide no documentary evidence that Hamilton excluded the President to ensure that Senators (and Representatives) were not appointed to positions for which they were ineligible under the Sinecure Clause. The most Shugerman (and Rao in 2017) can put forward is their explanation "seems likely." Why it seems likely, they do not say. In a February 2024 tweet, Shugerman admits that his position was made "w/o explicit confirmation." That's correct: Shugerman and Rao had no documentary evidence in 2017, and Shugerman has no documentary evidence now.
Response #4: If the Senate was worried about the Sinecure Clause, why didn't it ask about the Sinecure Clause?
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 using sine die termination. The constitutional term may have reached March 3, 1793. The Senate submitted the request to Hamilton on May 7, 1792. And Hamilton's request was for the financial year ending Oct 1, 1792 (Oct 1, 1791 to Oct 1, 1792). In other words, the entire financial year was in the Second Congress, but it did not extend to the compete two-year term. Part of the term of the Second Congress preceded the financial year reported by Hamilton, and part of the term of the Second Congress followed the financial year. Hamilton submitted his reply nine months after the Senate request on February 26, 1793.
This list, as requested by the Senate and as produced by Hamilton, would not have been helpful to police potential Sinecure Clause violations. The list did not distinguish between positions created during the First Congress and Second Congress. That information would have been essential to members elected to six-year terms in the First Congress and members elected to six-year terms in the Second Congress. Likewise, the 1793 Hamilton list did not include any positions created by Congress after October 1, 1792 but before March 3, 1793. So, in that sense, Hamilton's list was radically under-inclusive. If this document was primarily about giving members notice what positions they could not hold during the Third Congress (or thereafter), the Senate should have directed Hamilton's list to have included all positions created during the first two congressional terms.
To put it more simply, if the Senate was interested in a list of positions that had been created, or for which the emoluments were increased, why wouldn't the Senate have asked Hamilton to produce just that: a list of the dates on which positions had been created, or for which the emoluments had been increased and when such increases were authorized.
The list should have separated out positions created, or positions for which the compensation was increased, during the 1789-1791 term and the 1791-1793 term. By separating out the terms, it would have been clear that Senators whose terms began in 1791 would not be ineligible for the positions created between 1789 and 1791.
Response #5: Other Treasury Department rolls from the Early Republic did not address the Sinecure Clause
Secretary of the Treasury Alexander Hamilton and this staff prepared more than a few lists during Hamilton's tenure. In contrast to the 1793 Hamilton list, discussed above, Hamilton's 1789 financial report included the President, Vice President, and members of Congress. This report was a response to a congressional request for, among other things, the "civil list." Similarly, Hamilton's 1792 financial statement included the President's salary. This financial statement was a response to a congressional request for "an accurate statement and account of the receipts and expenditures of all public monies." In short, when the language in a congressional request for financial information accommodated the presidency and other elected positions, Hamilton included those elected positions in his response to Congress's inquiry. That was true in 1789 and in 1792. Only in Hamilton's 1793 list, did he leave out elected positions. We suggest that the reason Hamilton did not include elected positions on this occasion was that Congress's language, that is, "office . . . under the United States," did not extend to such positions.
Tillman has studied the lists prepared by Secretary Hamilton and his staff. We see no documentary support for the conclusion that any of these documents were produced to address inquiries about eligibility under the Sinecure Clause.
Response #6: Why did the Senate exclude judges from the list of positions?
In 1792, the Senate directed Secretary Hamilton to produce a financial statement listing the "salaries, fees, and emoluments" of "every person holding any civil office or employment under the United States, (except the judges)" (emphases added). The Senate's request to Secretary Hamilton excluded judges. And "judges" were the only position expressly excluded from the list. In our view, there is a likely explanation why judges were excluded: they are the only appointed positions where the salary could not be reduced by statute, due to the protections of the Judicial Compensation Clause. But whether or not you agree with our view, the exclusion of judges was significant.
This point gets into the weeds.
The first group of Senators were elected after the Constitution was ratified, and that body assembled in 1789. Under the Senatorial Classes Clause, that cohort of Senators would be divided into three classes:
The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year. [U.S. Const. art. I, sect. 3, cl. 2.]
About one-third of the Senators would have terms that concluded in 1791. One third would have terms that concluded in 1793. And one third would have terms that concluded in 1795.
As a result, when the Senate made the request to Hamilton in May 1792, there were still Senators who had been serving since 1789: some were holding 4-year terms and others 6-year terms.
The Sinecure Clause provides, again, "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." Senators who were elected for terms that began in 1789 would be ineligible for any of the judgeships created by the Judiciary Act of 1789, or for other judgeships created during their tenure in the Senate. If the Senate's purpose for ordering Hamilton to produce his 1793 list was, as Shugerman argued in 2017 and again in 2024, to prevent or police Sinecure Clause violations, the Senate should have been especially interested in the judgeships. But the judges were expressly excluded from the list.
Shugerman responds with speculation. He tweeted, "I don't think the 1st two Congresses added more judgeships or raised their salaries." Shugerman's response fails at the outset. All Senators elected to 4-year and 6 year terms in 1789 would have been ineligible to be appointed to these positions during the Second and/or Third Congresses. Contra Shugerman, it does not matter if Congress authorized additional judgeships or raised the salaries of the ones it had initially authorized. As for Shugerman's factual claim: Shugerman has had nearly seven years to investigate whether additional Article III judges were authorized after the Judiciary Act of 1789. The answer is "yes," such posts were authorized, and it took us only a few minutes of research to find the answer.
Rhode Island was admitted to the Union as the thirteenth state in May 1790. On June 23, 1790, President Washington approved the bill creating the Rhode Island district court, which would "consist of one judge," with a "yearly compensation of eight hundred dollars." 1 Stat. 128. Vermont was admitted as the fourteenth state in 1791. On March 2, 1791, President Washington approved a bill creating the Vermont district court, which would "consist of one judge," with a "yearly compensation of eight hundred dollars." 1 Stat. 197. There may be other judgeships created during the first and second congresses. We have not performed an exhaustive search of all bills that emanated during the early republic that may have created Article III or territorial judgeships. The Sinecure Clause barred some members of congress from being appointed to those positions. Shugerman's speculation, which skipped over some very basic research, does not support his case.
We think Shugerman is suggesting that by the time the Senate submitted the request to Hamilton in 1792, it was irrelevant what offices were created in 1789. Not so. A Senator who began a six-year term in 1789 would be ineligible to be appointed to one of the judgeships created in 1789. And that ineligibility would continue until 1795—this is long after the Senate submitted its 1792 request to Hamilton. Shugerman does not appear to appreciate that the ineligibility extends to the entire term for which a Senator was elected. His factual claims about when Congress created new judgeships were wrong, and it illustrates his continuing inability to characterize how that clause actually functions.
Response #7: What about Justice William Paterson?
Here, we recount a formative historical episode to demonstrate that Shugerman's argument based on the Judiciary Act of 1789 does not work.
Congress.gov provides this breakdown of how the first Senate class was divided:
On May 15, 1789, the Senate determined by lot the classes into which the membership should be divided agreeably to paragraph 2, section 3, of Article I of the Constitution, as follows: Class 1, term expires March 3, 1791—Messrs. Carroll, Dalton, Ellsworth, Elmer, Maclay, Read, and Grayson. Class 2, term expires March 3, 1793—Messrs. Bassett, Butler, Few, Lee, Strong, Paterson, and Wingate. Class 3, term expires March 3, 1795—Messrs. Gunn, Henry, Johnson, Izard, Langdon, and Morris.
These Senators would have served in Congress during the two year congressional term when the Judiciary Act of 1789 was approved. And two of these Senators would later serve on the Supreme Court, in seats created in 1789.
William Paterson of New Jersey was in Class 2, with a 4-year term, and his term would expire on March 3, 1793. He would resign from the Senate in 1790 to become Governor of New Jersey. But his Sinecure Clause clock continued to tick. President George Washington nominated Paterson to the Supreme Court on February 27, 1793. But Washington quickly realized that Paterson was still within the duration of the original term for which he was elected as Senator. On February 28, 1793, Washington "declare[d] that [he] deem[ed] the nomination to have been null by the Constitution." Arguably, that nomination would have violated the Sinecure Clause—at least Washington thought so. It is not clear what the relevant date is to determine a Sinecure Clause violation: (i) when the person was nominated; (ii) when the Senate provided advice-and-consent; (iii) when the President completed the appointment; or (iv) when the officer received his commission. Marbury v. Madison, 5 U.S. 137 (1803), suggests the answer is (iii), though Washington may have viewed (i) or (ii) as the starting point. After all, Washington could have simply delayed completing the appointment until after March 3, 1793.
Washington renominated Paterson on March 4, 1793, after the Third Congress began. Paterson was promptly confirmed. Paterson took the judicial oath on March 11, 1793. This history is recounted in a recent Harvard Law Review comment and in a comment to the Jefferson Papers.
Hamilton returned his Complete Report to the Senate on February 26, 1793, the day before Paterson's initial nomination. In theory at least, had the Senate asked Hamilton to include the judges on the list, Washington may have realized that Paterson was in the Senate when the position creating the associate justice position was created. But again, the Senate excluded judges from the request. Had the 1793 Hamilton list included the judgeships, it might have aided Washington had he, like the Senate, also received a copy. But given that the 1793 Hamilton list did not include judgeships, it would have been no help at all.
Shugerman speculates—based on what, we don't know—that it would have been "easy to track" the small number of judgeships. Apparently not so easy for the Washington administration! (Relatedly if Washington so quickly realized he would have violated the Sinecure Clause, one might think he would also be attuned to potential violations of the Foreign Emoluments Clause.)
If Shugerman were right, then it certainly would have been useful to know about the judgeships to avoid potential Sinecure Clause violations. But that concern apparently eluded Washington, Hamilton, and, most importantly, the Senate. And in the wake of the Paterson nomination, one might think that the Senate would, going forward, ask for a list of positions for which Senators were ineligible. But to our knowledge, no such request was ever made. (Indeed, such a list may have helped President Franklin Roosevelt avoid a Sinecure Clause violation with Justice Hugo Black.)
Response #8: What do the Hamilton experts think?
Shugerman closes with these tweets:
I think most people have been very patient with @SethBTillman & @JoshMBlackman reviving this argument, perhaps b/c @mgraber_ & @GerardNMagliocc & others had thoroughly demolished their evidence for the 14th A. "offices," & many originalists publicly dismissed it as nonsense. Let me be clear: It is nonsense. They speculate about reasons why Congress might not include the president, but they do not have any documentary evidence for their interpretation that stands up to scrutiny.
We too have been patient. The 2017 New York Times article observed:
"I was wrong to suggest that Tillman misused sources, and I was wrong to question his credibility," Professor Shugerman wrote. "Tillman is a diligent, creative, intelligent and learned scholar who deserved more respect than the way I handled these exchanges. I'm sincerely sorry for any trouble or hardship I caused for Mr. Tillman and his family." Professor Shugerman's fellow historians—John Mikhail, Jack Rakove, Gautham Rao and Simon Stern—said they were still studying the matter. Ms. Gorod did not offer a direct response.
We are not ones to impose any arbitrary limits on how long a scholarly response can take. But after all these years, we await any new argument to explain the 1793 Hamilton list. All Shugerman has done is dust off a Slate article that did not persuade in 2017, and persuades even less now. We will continue to wait for a meaningful reply. Shugerman could yet admit the most likely answer: Hamilton did not see the President as holding an "Office under the United States."
This is the conclusion that several Hamilton experts reached, including Professors Kenneth R. Bowling, Ph.D., Professor Stephen F. Knott, and Professor Robert W.T. Martin. We included declarations from these experts in our September 2017 CREW v. Trump filing, which was submitted in response to the legal historians.
Professor Bowling explained:
In Hamilton's day, some, perhaps many (but certainly not all) understood and used the phrase office under the United States (and its close textual variants) to include those officers who went through the Appointments Clause process of presidential nomination, Senate advice and consent, and presidential appointment, or to other lesser officers, such as those who only received presidential commissions (e.g., inferior officers). Office under the United States did not extend to elected officials. In my professional judgment, Hamilton's [1793] roll of officers, The Complete Report [which is reproduced in part in the Papers of Alexander Hamilton], is consistent with what was one strand (perhaps the prevailing strand) of the contemporaneous (that is, circa 1793) public understanding of office under the United States. Response to the Legal Historians' Brief at Exhibit H, ¶ 16.
Professor Stephen F. Knott explained that it was very unlikely that Hamilton had inadvertently excluded the President from Hamilton's 1793 list. Knott explained:
Hamilton was a careful lawyer, and he was inherently incapable of leaving the President and Vice President off a list as an oversight. When Hamilton examined and reported on an issue, he left no stone unturned. He simply would not have left individuals off of a list by accident. That notion is contrary to everything I have learned about the man through decades of research. Hamilton was meticulously detailed in any directive he wrote throughout his career as a staff officer for General Washington or during his tenure as Secretary of the Treasury. When Hamilton was asked to report to General/President Washington or to Congress he never responded in an under inclusive manner. Clarity, directness, and a fastidious attention to detail characterize all of Hamilton's reports. In my professional opinion, Tillman is correct to declare that Hamilton intended to leave the President and the Vice President off the list of "officers." Hamilton would never have made a "mistake" of such magnitude. That is simply unfathomable. Response to the Legal Historians' Brief at Exhibit I, ¶ 7.
Professor Robert W.T. Martin drew a conclusion from Hamilton's 1793 list: it was unlikely that Hamilton understood the President as holding a "civil office . . . under the United States." Martin wrote:
Had Hamilton thought that [the] Senate order's language of "Persons holding civil office . . . under the United States" included the President and Vice-President, their salaries would properly be listed with [Annexes] No. X to XVIII, as based on "accounts which have been received from the officers to which they respectively relate." The fact that Hamilton did not include their salaries is some substantial indication that Hamilton did not believe that this information [i.e., the President's salary] was responsive to the Senate's order. Response to the Legal Historians' Brief at Exhibit J, ¶ 16 n.2.
The Legal Historians have acknowledged that authenticity of the document we put forward as the 1793 Hamilton list. But having done so, the Legal Historians have never offered a substantive response why that document is not determinative about the outstanding issue between us: the meaning of "office under the United States." We will continue to wait for a reply from Shugerman and the other Legal Historians.
The post Part II – A Response to Professor Jed Shugerman on Slate in 2017, and his most recent 2024 Tweet Thread(s), About The 1793 Hamilton Document! appeared first on Reason.com.
