Zephyr Teachout, Parchment Barriers: Why Tillman and Natelson Are Wrong about the Anti- Corruption Principle on Concurring Opinions (2013)

Transcription

1 National University of Ireland, Maynooth From the SelectedWorks of Seth Barrett Tillman June 10, 2014 Zephyr Teachout, Parchment Barriers: Why Tillman and Natelson Are Wrong about the Anti- Corruption Principle on Concurring Opinions (2013) Seth Barrett Tillman Available at:

2 Parchment Barriers: Why Tillman and Natelson Are Wrong about the Anti- Corruption Principle posted by Zephyr Teachout I have argued in several articles and a forthcoming book that the Anti- Corruption Principle was and is a foundational constitutional principle. Larry Lessig has argued the same in a book, several articles, and a brief before the Supreme Court. He also runs a fascinating tumblr of corruption conversations at the convention. We both show how it motivated the Constitutional convention and was the overwhelming topic of the convention. The founding drafters would judge their own success or failure in terms of the Constitution in terms of whether or not it protected against corruption. As George Mason said as the Constitutional Convention got under way: If we do not provide against corruption, our government will soon be at an end. I am not going to recite the argument here its a substantial, text and history based argument. However, it leads to treating the Anti-Corruption Principle like federalism or the separation of powers a fundamental structural part of the Constitution. There are two general disagreements with this view: First, that I, and or Lessig, don t characterize the meaning of corruption at the time properly (we have slight differences), and second, that it was not and is not a Constitutional principle. Seth Tillman, and Rob Natelson citing Seth Tillman, have both recently argued that there is no such principle. Tillman sees a kind of smokinggun flaw with the argument the evidence that the word corruption was taken out of the impeachment clause as a ground for impeachment. Tillman writes: But when the Framers had a chance (actually multiple chances) to give this concept prominence in the Constitution s actual text, the Framers chose not to do so. It is not as if they forgot to use this term or, instead, used some close synonym; rather, they actively took this term out of the

3 Constitution. So why should we today embrace the corruption concept as one having constitutional scope or dimension? I have three responses. First, the absence of the word corruption does no more to the anti-corruption principle than the deliberate choice to exclude separation of powers does to the separation of powers principle. Second, the reason the word was taken out is because corruption is ill-suited to bad-intent criminal law statutes, and well-suited to prophylactic statutes or constitutional provisions that don t reference state of mind. Tillman has a common confusion he treats the scope of the word corruption as that which can be defined in a criminal-law like statute. Third, Tillman s particular argument contrasts with his general support for the anti-corruption principle. (1)First, the founders made a similar choice with regards to separation of powers. When critics objected, Madison skewered them with the argument that they were making parchment barriers be more important than fundamental understandings of power. If Tillman s argument applies to the anti-corruption principle, it applies with even greater force to the separation of powers principle. I could go further for now suffice it to say that I hope Tillman and Natelson are equally willing to dispose of the separation of powers principle. (2) Second, Tillman confuses the legitimate scope of the meaning of corruption with its legitimate use as a tool for individual judgement. This far, Tillman is correct:

4 Corruption appeared in a preliminary draft of the Constitution s Impeachment Clause. But this language was dropped, and superseded by treason, bribery, and maladministration, but the maladministration language appeared too vague. (Meigs, The Growth of the Constitution in the Federal Convention of (1899).) The Convention did not return to the earlier corruption language, and instead, it chose treason, bribery, or other high crimes and misdemeanors. This seems right to me, and not an indication on its face that there was an anticorruption principle, but rather that it was not an appropriate tool for the role of determining who should be impeached. Bribery and extortion were high misdemeanors at the time, so any high crimes and misdemeanors would include bribery and extortion and other crimes related to abuse of office. The choice to take out the particular word, as too vague, doesn t mean the founders didn t believe in corruption (the most cursory review of any writing shows the opposite), but that they saw government s tools for fighting corruption to be better placed in prophylactic rules. The anti-corruption provisions of the constitution, like emoluments clauses or the veto clause or the residency clause are designed to limit corruption but don t reference particular corrupt actors. Assume, for a moment, that corruption was taken out for vagueness that doesn t make it not a founding era principle, it simply makes it a bad candidate for being the grounds of impeachment. Arguably, the vagueness cuts the other way it is such a fundamental concept of enormous foundational import that it would threaten to trivialize it if were litigated in terms of legitimate impeachment. (3) Tillman s initial historical read was more supportive.

5 Tillman, up to now, has generally supported the argument for an anticorruption principle. In a colloquy between us at Northwestern he wrote: There is a structural anti-corruption principle of constitutional dimension. That principle, the ACP, vindicates substantial congressional control over statutory officers, i.e., officers under the United States. It puts federal statutory officers in a fiduciary relationship under the government, in respect to the officers elected masters and all of the nation s citizens. However, he and I disagree about the scope he thinks it applies only to appointed, not elected officers. Tillman s general interest, for those being introduced to the debate, is the meaning of the word officers his argument is in the prior article, my response on officers is here. We disagree about offices, but I think he has strong and interesting arguments. I hope he returns to this basic principle, and engages the question of what corruption means inside the historical context of the acceptance, instead of rejection of the principle. October 28, 2013 at 11:44 am Posted in: Uncategorized Print This Post 9 Responses Pathfinder - October 29, 2013 Lessig and Teachout are engaged in the worst type of scholarship attempting to conjure up a theory that will turn their policy preferences into a constitutional mandate. In doing so they ignore all other possible readings, including many that have more direct support in the Constitutional text and structure (which they pretty much have to admit).

6 Obviously the Founders were concerned about virtue and preventing corruption in government. (That is essentially their point of agreement with Tillman). But this does not and cannot mean that there is some free-floating anti-corruption principle embedded in the Constitution, a sort of vague legislative intent that overrides the actual language and structure, to be pulled out whenever one needs to support one s favored government policy (for Lessig and Teachout, broad restraints on political speech and participation). It would make as much sense to comb the page of late 18th century political tracts to create a basic liberty principle that trumps the actual language and structure of the Constitution, causing most of the current edifice of government to fall; or to find an equality principle dictating much more redistribution of income. The framers were concerned with many things. They enacted a Constitution to address those concerns. To suggest that one area of concern, one broad principle of government, somehow trumps specific provisions of the Constitution or overrides its structural elements is absurd, particularly when they further interpret that broad principle, rather tendentiously, as being achievable only through the policies they favor. Zephyr Teachout - October 29, 2013 Zephyr - October 30, 2013 Rob thanks for chiming in. As I read your post, you said that Lessig and I asserted that there was an anti-corruption principle, and Tillman s response devastated those assertions. I read that to be a rejection of the ACP. I m glad to know that you are at least open to looking at things through the lens of the ACP.

7 - See more at: tillman-and-natelson-are-wrong-about-the-anti-corruption-principle.html#more