At the New Reform Club, Seth Barrett Tillman on his latest project: My Next Paper: Counting Framers & Counting Originalists. From the introduction
The modern succession statute, the Presidential Succession Act of 1947, like its 1792 predecessor, provides for legislative officer succession** in the event that the presidency and vice presidency go vacant. Notwithstanding that majorities in both houses of the Second Congress voted for legislative officer succession, some modern scholars have suggested that the members erred, that is, the Presidential Succession Act of 1792 was unconstitutional.
These scholars have “appealed” from the “verdict” of the members of the Second Congress to the Framers sitting in the Second Congress. For example, Paul Taylor asserts that the 1792 Act “was opposed as unconstitutional by James Madison and a majority of other former Delegates to the Constitutional Convention.” Similar claims are made by Professors Akhil Amar, Vikram Amar, Feerick, Goldstein, Kalt, and Silva. But this position is not correct. Hugh Williamson—convention delegate from North Carolina and subsequently a Representative—was the only Framer holding an elected federal position at the time Congress enacted the 1792 statute who we know opposed legislative officer succession on constitutional grounds. In other words, we cannot credibly say that several, many, a plurality, much less a “majority” of the Framers opposed legislative officer succession on constitutional grounds. Indeed, to argue that even as few as two Framers, who were also members of the Second Congress, opposed legislative officer succession on constitutional grounds would be error.
And in conclusion:
There are those today who wish to impugn the constitutional bona fidés of the modern 1947 Act, which like its 1792 predecessor, provides for legislative officer succession. There are some policy grounds for objecting to the 1947 Act—I do not suggest that all the policy arguments go in one direction. But I do state that rooting a modern constitutional objection in Madison’s voice or that of the Framers as a group is entirely ahistorical. In these circumstances, one cannot appeal the judgement of the Second Congress (as a whole) to the Framers (as a group), and if that appeal—for whatever reason—has, in the past, convinced some unwary authors and consumers of prior legal scholarship, it is only because some originalists cannot count.
Posted at 6:05 AM